Tag Archives: civility

But I Repeat Myself…

Last Thursday, I delivered the following speech to a Kiwanis group in Northwest Indianapolis. Longtime readers of this blog will recognize the “theme”…It’s also considerably longer than my usual posts, so my apologies.

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Over the past several years, we’ve seen America’s political debates become steadily less civil. Bigotries that were once more or less suppressed—at least, in polite company– are being publicly paraded. Partisanship has overwhelmed reasoned analysis. The death of newspapers and the ubiquity of social media and the Internet have encouraged people to choose their news (and increasingly, to inhabit their preferred realities).

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

John asked me to talk a bit about this small book I wrote a couple of years ago–Talking Politics? What You Need To Know Before Opening Your Mouth.. I wrote it because I believe that civic ignorance is a huge, and hugely under-appreciated, element of America’s current dysfunctions.

Voters don’t need to be constitutional scholars, but a basic understanding of the history and structure of American government matters. A lot. Productive civic engagement requires 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.

Most educated Americans know that our 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. What is less recognized is that the Enlightenment did something else: it changed the way people defined 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, however, 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 sure their neighbors did likewise.

The Enlightenment ushered in a dramatically different definition of liberty, sometimes called the Libertarian Construct. It’s a version of liberty that insists on the right of individuals to determine their own moral ends and life goals, and their right to pursue those goals free of government interference. People were supposed to be free to “do their own thing,” so long as they were not harming the person or property of others, and so long as they were willing to grant an equal measure of liberty to others.

The post-Enlightenment version of liberty begins with the belief that fundamental rights aren’t gifts from benevolent governments; instead, Enlightenment philosophers and America’s Founders believed that humans are entitled to certain rights just because we’re human– and that government has an obligation to respect and protect those inborn, inalienable human rights.

When we ask the question whether this or that behavior is protected by the Bill of Rights, it’s really important to recognize that the Founders didn’t conceive of the Amendments as grants of rights—they were commitments to protect our human, inborn rights from an overzealous government and what they referred to as the “passions of the majority.”

As I used to tell my students, the Bill of Rights 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 communications, for example—and it can’t do those things even when popular majorities approve. The Founders focused on restraining the power of the state, because in their world, governments were the most powerful entities. That’s why we define civil liberties as freedom from government intrusions. It wasn’t until 1964 that the United States began to pass civil rights laws that prohibited 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 cover our genitals when we’re out in public. As Justice Scalia wrote in Employment Division vs Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t really sneaky 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 and engaged electorate.

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 as well. There’s a Facebook meme going around to the effect that people who don’t understand how anything works are the people most likely to latch on to conspiracy theories. Whether that’s true or not, it is definitely the case that people who don’t know how government works are at a real disadvantage when they need to navigate 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 action or inaction can 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. As I indicated earlier, what we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m really old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting, to increasing tribalism, to fears 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 this 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 or prohibits. But by and large, those aren’t the things Americans are arguing about.

In my academic life, I studied how Constitutional values apply within an increasingly diverse culture, the ways in which America’s constitutional principles connect people with different backgrounds and beliefs and make us all Americans.  That research 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 taught Law and Public Policy, I began with what I like to call the “constitutional architecture,” a discussion of the ways America’s legal framework limits what laws we can pass, and what legal scholars mean when they refer to the importance of the Founders’ “original intent.”

I liked to ask students “What do you suppose James Madison thought about porn on the internet?” Usually, the student would laugh and then we’d 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 identify 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, for the first time, 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. Initially, as we know, the American Idea only applied to property-owning White guys, but—over a lot of resistance– we have steadily expanded it. (As the ubiquity of cellphone cameras keeps demonstrating, we’re still struggling with that expansion.)

History tells us that 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 in public?

How would the conversations we are having about vaccination mandates and 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 what government has the right to demand. We can—and do—argue about what constitutes harm, and when that harm is sufficient to justify government intervention in personal decision-making.

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 have their ups and downs. I think most of us will agree that we are in a very “down” period right now. Unfortunately, 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—at least theoretically– is a set of constitutional 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, and why I wrote that little book.

It’s a very little drop in a very big ocean…but we can only do what we can do.

I know I rant. Thanks for indulging me.

 

Respect

Tom Friedman isn’t one of my favorite New York Times columnists; I usually find him either tendentious or self-congratulatory. But he’s growing on me.

I especially liked his column last Wednesday, in which he suggested a slogan/bumper sticker for the Biden campaign:“Respect science, respect nature, respect each other.”

If only!!

As Friedman writes, not only are these values held by most Americans, they are in dramatic  contrast to Trump. (I’m pretty sure Trump doesn’t have anything we would call “values”–and I have never seen him display anything remotely resembling respect for anyone or anything..Even self-respect would be an improvement.)

Disdain for science is seen in Trump’s antagonism to fact, evidence and reality. It’s bad enough when his contempt for facts involves lying about crowd sizes or windmills causing cancer, infuriating when it involves denial of climate change– but with the advent of Covid-19, it poses an even more immediate threat.

But his disdain for science has become fatal, as we’re seeing in this widening pandemic. Trump has gone from offering quack remedies, like disinfectant, ultraviolet light and hydroxychloroquine, to mocking people, including Biden, for adopting the easiest and most scientifically proven method for limiting the spread of the coronavirus: wearing a face mask.

Trump doesn’t simply reject science. He’s lost whatever grip  he ever had on elementary logic.  Friedman echoes the astonishment so many of us expressed when our Commander-in-Chief–the purported leader of the free world–opined that we have more cases of Coronavirus because we test for it.

Think about that: Stop testing. Then we’ll have no knowledge. Then we’ll have no numbers. Then we’ll have no virus. Why didn’t I think of that?

Stop testing people for drunken driving, and then we’ll have no more drunken drivers. Stop arresting people for shootings, and then the crime rate will go down.

And if we didn’t have pregnancy tests, voila! Population control…

Then there’s the little matter of respecting Mother Nature.

Trump’s lack of respect for nature may be a political asset for him with his base, but it’s been a disaster for the country. …

Respect for nature also means understanding that we live on a hard rock called planet Earth with a thin cover of oceans and topsoil, enveloped by a thin layer of atmosphere. Abuse that soil, junk up those oceans with plastics, distort that atmospheric blanket and we will likely (further) destroy the perfect Garden of Eden that has been the basis of all human civilization.

According to National Geographic, the Russian Arctic has been having an extended heat wave that drove temperatures north of the Arctic Circle to 100.4 degrees F on June 20–the official first day of summer. (I can’t imagine what that will do to all the structures that have been built on the Arctic’s permafrost…)

The Trump administration has rolled back close to 100 environmental regulations–and has failed or refused to enforce a number of others. The administration reserves its “respect” for the bottom lines of fossil fuel and chemical companies that are operating with impunity as the planet heats and widely-used chemicals are found to be lethal.

Respect for other people? Can we even remember the civility, decorum and good manners of the Obama-Biden administration?

Respect each other? That’s not so easy in the midst of our other pandemic — a pandemic of incivility. You cannot exaggerate the impact on the whole civic culture of having a president who has elevated name-calling, denigration and lying to a central feature of his presidency, amplified by the White House.

Friedman acknowledges that there are multiple sources of disrespectful behavior–especially the algorithms of social media platforms–but he notes that restoring interpersonal respect will require  two things: a president who every day models respect rather than denigration, and citizens who actually listen to each other. Right now, we have neither.

Respect for science. Respect for nature. Respect for each other.

I like that.

 

Equipping Voters

On this blog, I frequently share concerns that American levels of civic literacy are too low to sustain democratic self-government.

I’d like to expand on those concerns.

Civic knowledge–or more accurately, its lack– is also linked to two aspects of the broader unrest we are experiencing: we need to restore civility and honesty to our public debates; and we need to encourage not just voter turnout–important as that is– but to improve the number of Americans who cast informed ballots.

Americans will always argue, but my research has convinced me that civic ignorance– defined as inadequate knowledge of America’s history, Constitution and Bill of Rights—creates conflicts that are wholly unnecessary, and worse, encourages the partisan dishonesty and propaganda we see all around us.

When people don’t understand the structure of federalism or separation of powers (only 26% of Americans can name the 3 branches of government), when they don’t know that the Bill of Rights limits both government and popular majorities, it’s easy for partisans to generate suspicion that government is operating in ways that it shouldn’t, and to undermine trust in our governing institutions.

As we’ve seen, when people distrust their government, and are suspicious of its motives, disrespect and hostility infect public attitudes and intensify public debates.

And when government really isn’t operating properly, when–as now– there’s clear evidence of incompetence or corruption or both, it’s especially important that citizens be able to communicate–that we occupy a common reality and argue from the same basic premises. When Americans are faced with evidence that America has failed to live up to its ideals, it’s critically important that we all understand what those ideals were.

America was the first country in the world to base citizenship on behavior rather than identity—on how people act rather than who they are. Initially, of course, that ideal of equality was only extended to white guys with property, but the principle–the ideal– represented an important paradigm shift.

America also redefined liberty. Liberty was no longer the individual’s “freedom” to do whatever the monarch or the church decided was the “right thing.”

Instead, government was supposed to protect your ability to do your own thing, so long as you did not thereby harm the person or property of someone else, and so long as you were willing to respect others’ right to do likewise.  Of course, Americans still can and do argue about what harm looks like, and what kinds of harm justify government intervention (and we seem to have a particularly difficult time with that thing about respecting the rights of others to do their thing.)

Civility and civil peace would be significantly enhanced if more Americans understood that the Bill of Rights requires a lot of “live and let live” forbearance, and especially if they understood that the Bill of Rights restrains government from doing some of the things that majorities at any given time want government to do.

If–as I devoutly hope–we eject Trump and his horrendous administration in November–and we turn to the long-term project of “cleaning up” corruption, incompetence and racism in government, voter education writ large must be the first order of business.

Voter education includes more than how to register, and how and where to vote, as important as those practical instructions are. (Helpful websites like this one from the Indiana Citizen have that information.)

For voter education to facilitate the casting of informed ballots, it has to include a basic understanding of how government is structured and operates, and an understanding of the duties and responsibilities of the office being filled. What does the job entail? What are the constraints that limit the office, the checks and balances? Do the candidates (unlike Trump) understand those limits?

The ability to cast an informed ballot requires information about the candidates and their positions on the issues. It also requires knowing how the incumbent has performed, assuming that incumbent is running for re-election.

This is precisely where our local information environments are failing. There has been a massive loss of local newspapers (over 2000 in the last few years)—and we get very little information about local government from the hollowed-out ones that remain.(The Indianapolis Star, is a case in point.)

In the run-up to elections, local newspapers used to analyze and fact-check political ads. Today, the general public is left to get its information from mostly partisan sources. Citizens must decide which of those sources are trustworthy and which are irremediably biased. One of the most helpful tools a citizen can have in making those determinations is a solid understanding of American government.

In the era of Trump, an understanding of elementary logic would also be helpful….

 

 

Civility And The First Amendment

How many times have we heard someone defend a racist, belittling or otherwise nasty tweet or Facebook post by claiming that critics were attacking his or her  “First Amendment rights”?

The First Amendment may protect that person’s right to spew vitriol against government censorship, but it also protects the speaker’s critics–including, for that matter, decisions to fire the speaker from a private-sector position. Beyond that widespread misunderstanding of just what it is that Freedom of Speech protects, however, is a lack of appreciation of the important role of civility in America’s marketplace of ideas.

I recently participated in a “civility training” for Women4Change Indiana, and dug out a brief introduction to the topic that I had delivered a couple of years ago. Given how very un-civil American discourse has become, I thought it might be timely to share.

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Twenty-five years ago, when I was Executive Director of Indiana’s ACLU,  I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.

That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”

They couldn’t be more wrong.

This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion.They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.

But that’s where civility comes in. If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.

Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.

There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media is clearly an important contributor. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated– not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.

Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.