Tag Archives: partisanship

Beyond Cherry-Picking

A recent essay from The New Republic addressed a question that constantly bedevils me: why do people firmly believe things that are demonstrably false?

I’m not talking about questions that are simply unprovable, like “is there a God?” I’m talking about aspects of our common experience about which there is ample data from credible sources. The linked article, for example, looks into the widespread belief that America’s economy is struggling, when all of the data confirms the opposite.

In the article, Timothy Noah dubs the journalism tracking such unsupportable beliefs as the “Folklore Beat,” and provides examples:

Covid vaccines are unnecessary. Foreign aid constitutes two-thirds of the federal budget. Donald Trump won the election. Schoolteachers are trying to turn your children gay or trans. Little green men visited Area 51, and the military doesn’t want you to know.

Noah is impatient with the media’s tendency to report respectfully on the people espousing those beliefs.

I’ll grant that when misconceptions acquire a large following (though seldom a majority one), that’s news. But is it really necessary to hand a megaphone to every street-corner blowhard in America? News organizations don’t do this because they believe what the blowhards say. They do it because they’re sensitive—too sensitive, if you ask me—to any accusation that they’re out of touch with John Q. Public. And while it’s certainly necessary to document ways in which macroeconomic data fails to capture the complexities of everyday life, particularly with respect to economic inequality, how many times do I have to hear some uninformed fool expound on how President Joe Biden is mishandling the economy? He can’t prove it; he’s not trying to prove it; he just feels that way, and we mustn’t disrespect feelings.

When it comes to the economy, polling continues to show much of the public unhappy with Biden’s performance–although, as Noah notes, “the Wall Street titans on whom Biden wishes to raise taxes maintain a higher opinion of Biden’s economic stewardship than the public at large.”

Perhaps that’s because the rich watch economic matters more closely.

Speaking of the rich, Morgan Stanley recently quadrupled its prior estimate of GDP growth for the first six months of this year, and doubled its GDP growth prediction for October–December 2023, signaling that its economists no longer anticipate a recession. But only a paltry 20 percent of respondents to a CNBC  survey released the same week agreed that the economy was excellent or good. Other polls have returned similar results.

The New Republic essay enumerated the truly excellent economic facts of life–employment and paychecks up, inflation down, manufacturing returning to the U.S., etc.–and then considered reasons for the public’s evident dismissal of excellent economic news.

As with so many aspects of American life today, the answer turns out to be partisanship.

In 2016, Gallup polled voters on the economy one week before the election and one week after. During the week preceding the election, with President Obama in the White House and Hillary Clinton widely expected to win, only 16 percent of Republicans thought the economy was improving, compared to 61 percent of Democrats. One week after the election, fully 49 percent of Republicans suddenly thought the economy was improving, compared to only 46 percent of Democrats. Note how much greater this post-election swing was for Republicans: 33 percentage points, compared to 15 for Democrats….

How does voter opinion differ according to party identification on Biden’s handling of jobs and unemployment? So much so as to render the 47–48 percent figure meaningless. Among Democrats, 84 percent approve, in rough approximation to objective reality. Among Republicans, only 15 percent do.

Inflation? Only 5 percent of Republicans approve of how Biden handled that, as against 71 percent of Democrats. If the judgments of both remain less favorable than on jobs and unemployment, that’s because inflation, though greatly diminished, remains above the Fed’s target level of 2 percent (though if you ask me, 3 percent inflation is pretty low).

The inescapable conclusion is that when you ask somebody whether the economy is doing well, you won’t get an answer about the economy. You may not even get an answer about that individual’s personal experience (which may or may not reflect broader economic trends as compared to one, two, or 10 years ago). Most of the time, you’d be better off just asking, “Are you a Democrat or a Republican?” Because these days, that determines how people—especially Republicans—feel about pretty much everything. If the man on the street sounds like a blowhard, hyper-partisanship explains why. The rest is just noise.

Partisan polarization has overwhelmed reason. Tribalism now dictates interpretations of reality. And of course, thanks to the Internet and social media, it’s easy to find “evidence” to support your preferred version of even the most unlikely “facts.”

Welcome to Never-Never Land.

When Words Lose Their Meaning….

Before I was a lawyer, I was a high school English teacher, a position that required me to  explain how language communicates meaning–the roles played by denotation and connotation, and the often-unrecognized difficulty of getting one’s point across.

Recognizing that you may hear my use of term A to explain X  as an admission of Y is one  of the most frustrating aspects of political communication. it’s a problem that goes well beyond the obvious fatuity of slogans like “Defund the Police,” and it makes messaging particularly difficult for Democrats; the GOP base shares focused grievances that allow party strategists to communicate to a cohesive and receptive cult. Democrats who wring their hands over the party’s inept “messaging” aren’t wrong, exactly, but they fail to recognize both the inherent difficulties of language, and the Democrats’ need to reach people who occupy a broad spectrum of opinion.

A recent essay in the New York Times provides an example rooted in “dog whistle” days. It’s titled: “A Handy Guide to the Republican Definition of a Crime,” and it harkens back to that tried and true Republican demand for “law and order”–the meaning of which has changed rather dramatically.

If you think Republicans are still members of the law-and-order party, you haven’t been paying close attention lately. Since the rise of Donald Trump, the Republican definition of a crime has veered sharply from the law books and become extremely selective. For readers confused about the party’s new positions on law and order, here’s a guide to what today’s Republicans consider a crime, and what they do not.

Not a crime: Federal crimes. All federal crimes are charged and prosecuted by the Department of Justice. Now that Republicans believe the department has been weaponized into a Democratic Party strike force, particularly against Mr. Trump, its prosecutions can no longer be trusted. “The weaponization of federal law enforcement represents a mortal threat to a free society,” Gov. Ron DeSantis of Florida recently tweeted.

The F.B.I., which investigates many federal crimes, has also become corrupted by the same political forces. “The F.B.I. has become a political weapon for the ruling elite rather than an impartial, law-enforcement agency,” said Kevin D. Roberts, the president of the right-wing Heritage Foundation.

And because tax crimes are not real crimes, Republicans have fought for years to slash the number of I.R.S. investigators who fight against cheating.

Having clarified why federal misbehaviors no longer qualify as criminal, the essay explains the current GOP approach to the labeling of state and local crime: if it happens in an urban area or in states run by Democrats, it’s a crime.

On the other hand,

Not a crime: Any crime that happens in rural areas or in states run by Republicans.
Between 2000 and 2021, the per capita murder rate in states that voted for Donald Trump was 23 percent higher than in states that voted for Joe Biden, according to one major study. The gap is growing, and it is visible even in the rural areas of Trump states.

But this didn’t come up when a Trump ally, Representative Jim Jordan of Ohio, held a hearing in New York in April to blast Manhattan’s prosecutor for being lax on crime, even though rates for all seven major crime categories are higher in Ohio than in New York City. Nor does House Speaker Kevin McCarthy — who tweets about Democratic “lawlessness” — talk about the per capita homicide rate in Bakersfield, Calif., which he represents, which has been the highest in California for years and is higher than New York City’s.

Republicans now include under their motto of “law and order” the “crimes” of abortion and transgender care, prohibition of which they piously frame as protection of children. (As the essay notes, GOP solicitude for the young doesn’t extend to regulating the guns that are the leading cause of American children’s deaths.)

There are other  GOP “definitions.” If Hunter Biden did it, it’s a crime. Trump and his offspring? Didn’t notice any wrongdoing–despite vast evidence of influence-peddling and self-dealing that would seem to violate the emoluments clause of the Constitution and any number of federal ethics guidelines.

And of course, there was Hillary Clinton’s use of a private email server, leading to the GOP’s righteous demands to “lock her up.” That was criminal behavior, unlike Trump’s obviously innocent efforts to overturn an election and his theft of classified materials.

Effective messaging and communication require clarity and simplicity. The GOP has mastered it. “Law and order” still means “arrest Black people,” but now it also means “if Republicans did it, it was lawful; if Democrats did it, it was criminal.”

Unfortunately, that simple message cannot be countered with an equally simple response; explaining why it is dishonest requires facts and logic–and listeners.

Communication is hard.





Gerald Stinson recently shared a research article with me that  gave rise to a small epiphany.

The article was titled “Political Grief” and it had been prompted by reactions to the 2016 election of Donald Trump–a reaction that the author accurately noted went well beyond the usual types of depression partisans suffer in the wake of electoral loss, and in fact, was a manifestation of what the author dubbed “political grief.”

I think this is exactly right.

All of us who are of “a certain age” have experienced personal losses and the grief that accompanies those losses. Friends and family members disappoint or die, businesses and/or projects near and dear to us fail, and we respond to those events with grief and despair. As the article notes, however, similar responses occur when our expectations about how the world works prove unfounded. We humans are “attached” to such deeply-rooted assumptions; they are deeply woven into the way we live our lives, interpret our life events, and anticipate outcomes. When we “experience a significant life event that cannot be readily incorporated into these assumptions” we experience “a state of disequilibrium.”

Grief, in response to loss.

The author reviews research into the nature of grief, noting that the loss of our assumptions about the way the world works translates into a loss of safety, logic, clarity, power and control. Grief becomes the process by which we reconcile (or don’t!) the world we now know exists with the world as we once believed it to be.

The entire article is worth reading and considering. Those of us who reacted viscerally to the results of the 2016 Presidential election will recognize ourselves in the author’s description of the “feelings of sadness, disbelief and grief over the death of values, ideals, hopes and dreams” experienced by her colleagues at a conference they were attending at the time of the election. But what we may fail to appreciate is the corresponding reaction to cultural change that has been experienced by those who ended up voting for Donald Trump.

The author of the article traces the evolution of our current, toxic political climate, and considers the various academic theories about the motivations of Trump voters, especially  the economic inequality perspective and the cultural backlash thesis, both of which have contributed to the deep resentment of those who feel disrespected and left behind. (The Left Behind is a book I referenced in a previous post; I’m reading it now, and Wuthnow’s description of the rural folks he interviewed is consistent with the article’s thesis.)

People who embrace so-called “traditional values” feel increasingly out of step with the changing culture of contemporary American (and European) society–and they are grieving the loss of their worldview and their place in American society. The accompanying resentment and anger makes them susceptible to nativism and xenophobia–a susceptibility that is particularly (but certainly not exclusively)  found among older, less-educated White men.

Terror Management Theory also has application: people who feel threatened tend to find refuge in their cultural world-views, religious symbols and beliefs.

“When we perceive a threat, we retreat to what we know best and to those who are most like us, and who make us feel safe and protected….Identifying with others who share similar values, culture, religion (including outward appearance and skin color) is seen as safe; blame and fear are placed on those who are not us.”

In our current political environment, political affiliation is no longer based upon support for particular policies or parties, it has become an integral part of one’s personal identity. Partisans aren’t just working for specific policies–they are defending deeply-held values and world-views.  Both sides of the divide express “moral outrage” over the views of the “others.” As the author notes, the only common ground to be found is in “the shared sense of outrage over the deplorable values and platform of the other side.”

If this analysis is accurate–and I think it is–we’re in for a world of hurt.

The grief felt by both sides in what seems an insurmountable divide is all too real. Those clinging to “traditional values” (and traditional social castes) are grieving the increasing abandonment of those beliefs and the once-familiar lines of social and racial demarcation; those embracing that social evolution are grieving, overwhelmed and discouraged  by evidence that so many Americans are ready to fight to keep change and inclusion at bay.

Grief seems appropriate.


The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.


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…)


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.