Tag Archives: partisanship

Returning To My Civics Preoccupation

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

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

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

It matters. Productive civic engagement is based on an accurate understanding of the “rules of the game”– especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, that’s why civic ignorance matters. 

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Political Tribalism

One of the more intriguing “factoids” that emerged during 2019 was the shift in parental views on intermarriage. Objections to their children marrying across racial or religious lines  continued to diminish; however, the proportion of people who didn’t want their children marrying across political lines increased substantially. In fact, more parents would object to their child marrying into a family with a different political persuasion than would be upset by an inter-racial union.

Political identity has become a potent–albeit not perfect– marker of a range of attitudes about race, women’s rights, economic justice, and (as one political scientist has quipped) one’s favorite grocery store.

The vastly increased saliency of political identity recently led Thomas Edsell to pose a question.

Is the deepening animosity between Democrats and Republicans based on genuine differences over policy and ideology or is it a form of tribal warfare rooted in an atavistic us-versus-them mentality?

Is American political conflict relatively content-free — emotionally motivated electoral competition — or is it primarily a war of ideas, a matter of feuding visions both of what America is and what it should become?

Edsell quotes Lilliana Mason, a leading scholar of partisanship.

“Group victory is a powerful prize,” Mason writes, “and American partisans have increasingly seen that as more important than the practical matter of governing a nation.”

The recent party-line vote on Impeachment in the House of Representatives certainly supports Mason’s thesis. For that matter, the importance of group victory to partisans is all that can explain the behavior of Republicans in both the House and Senate during Trump’s Presidency; they have consistently put the interests of their party above the interests of the nation and the concerns of governance.

Edsell also quotes Shanto Iyengar, a political scientist at Stanford, for the proposition that “policy preferences are driven more by partisans’ eagerness to support their party rather than considered analysis of the pros and cons of opposing positions on any given issue.”

Alan Abramowitz, a political scientist at Emory, disagrees. He doesn’t believe that partisanship dictates ideological and policy decisions; instead, he argues that ideological differences drive polarization.

Democratic and Republican voters today hold far more distinctive views across a wide range of issues than they did in the past. And it is among those Democrats and Republicans who hold views typical for their party, that is liberal Democrats and conservative Republicans, that dislike of the opposing party is strongest.

Alexander Theodoridis is a political scientist at the University of California-Merced. He appears to think it goes both ways–that people originally identify with a party based on ideological compatibility, but then “adjust” or harden their positions in response to partisan messaging:

For most people, party identity appears to be far more central and salient than particular issue positions. We see increasing evidence of people adjusting their issue positions or priorities to fit their party allegiance, more than the reverse. We are very good at rationalizing away cognitive dissonance. More important than this chicken-or-egg question is the reality that ideology and party have become very highly sorted today. Liberal and Conservative are now tantamount to Democrat and Republican, respectively. That was not always the case. Furthermore, all sorts of descriptive and dispositional features (ranging from religion and race to personality type and worldview) are also more correlated with political party than they were in the past. All this heightens the us-versus-them nature of modern hyperpolarization.

Whichever came first, we are now at a point where most Republicans and Democrats inhabit different realities, informed by different “facts,” and espouse distinctly different values.

When disagreements are about policy, compromise is possible. When those disagreements are about morality, not so much.

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When Partisanship Overwhelms

When I was researching various aspects of American polarization for my most recent book, I came across Lilliana Mason’s all-too-accurate summary of the role political identity currently plays. Mason, a political scientist, argues that “A single vote can now indicate a person’s partisan preferences as well as his or her religion, race, ethnicity, gender, neighborhood and favorite grocery store.”

Partisanship has increased to the point that parents today disapprove more strongly of their children marrying across party lines than across racial or religious ones.

Political scientists tell us that Democrats and Republicans like each other a lot less than they used to because people today have “sorted themselves” into parties of the like-minded–their partisan affiliations reflect their attitudes on race, religion and ethnicity, as well as economic and social policy.

More troubling is the fact that close identification with a political party actually changes ideological commitments–today, when a political party takes a position, partisans who originally felt otherwise fall in line.  They don’t change parties; they don’t even demur. They change their original positions.(Think about the  acquiescence of Republican lawmakers and voters to policies of President Trump, like tariffs and family separation, that are wildly at odds with longtime Republican positions.)

Obviously, intellectually honest people don’t allow partisanship to trump (no pun intended) their beliefs. Their numbers aren’t large, but I give big props to the “never Trump” Republicans and former Republicans like Charlie Sykes. Sykes was a talk radio conservative who teamed up with Bill Kristol in 2018 to establish a conservative site called “The Bulwark.” The Bulwark argues–along with people like Joe Scarborough of “Morning Joe” and GOP strategist Rick Wilson–  that Trump has blatantly violated foundational conservative principles, from foreign policy to federal deficits, that were once deemed basic to Republican identity.

In a recent article written for the Bulwark, Robert Tracinski argues that today’s excessive, arguably fanatical partisanship has overtaken rationality. He begins by pointing to Rush Limbaugh’s obvious hypocrisy in ignoring characteristics in Trump that he excoriated in Democrats.

“That Limbaugh is being a complete hypocrite is a trivial observation,” Tracinski asserts. “If a Democratic president had been caught doing this, of course Limbaugh would be screaming for his impeachment with equal volume and ferocity. What is more interesting is the rationale he offers: a simple appeal to hatred of the opposition — as a justification, as an inducement, as an end in itself.”

But the fact that Trump isn’t a Democrat, Tracinski stresses, doesn’t make him a good president. And Limbaugh, he adds, is typical of all too many Republicans who are more interested in partisanship than conservative principles.

“Conservatives have sold their souls for the sheer pleasure of partisan hatred,” Tracinski laments. And it’s not going to be easy to break this spell.”

Tracinski also lambasts Sen. Lindsey Graham in his piece, noting that as much of a Trump sycophant as he has become, he was “left out of the loop” when Trump decided to withdrawn U.S. troops from Syria.

“But why should Trump have consulted Graham?,” Tracinski asks. “He’d already sold his soul. He’d already indicated that he will back Trump no matter what; so, why should Trump bother to inform him about future compromises that will be required? This is where everyone will end up eventually.”

Hatred of “the other” takes many forms. When your partisan affiliation becomes the most important aspect of your identity, loyalty to your political tribe overwhelms everything else–common sense, the values you espouse, the obvious evidence of betrayal.

Reasonable Americans watch the embarrassing spectacle that is Donald Trump and find it difficult–if not impossible–to understand how anyone could continue to support this pathetic, ignorant, self-absorbed child-man. Tracinski may have solved the conundrum: the “base” isn’t supporting Trump so much as they are defending their identities–and indulging their hatred of their tribal opponents.

Unfortunately, tribal warfare is inconsistent with democratic self-government.

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Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.

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Another Reason To Reject Kavanaugh

Much, if not most of the opposition to Brett Kavanaugh, revolves around his obvious antagonism to Roe v. Wade. 

Most people’s arguments for and against Roe center on abortion. But that really isn’t what the ruling protects. The issue isn’t whether or not a woman should terminate a pregnancy–it is about who gets to make that decision. Judges who want to overrule Roe believe that government–not the pregnant woman– should have that authority, that the personal autonomy protected by the Bill of Rights can and should be limited when a majority of legislators see fit to substitute their judgment for that of the individual.

The implications of that position are what keep me up at night.

If you look carefully at the legal and philosophical arguments advanced by opponents of Roe (rather than the “pro-life” demonstrators who see it as simply a question of abortion, which they oppose) you will find a disquieting thread of authoritarianism. These are the judges and organizations who consistently favor the exercise of power–government over citizens, major corporations over consumers, the status quo over potential disruption.

That tendency to weigh in on the side of established authority is subject to one notable  caveat: authority is only right when it is “their guys” who are wielding authority. (They are like the Christian theocrats who are critical of the Taliban, not because individuals should have the right to form and hold their own beliefs, but because the Taliban is imposing the “wrong” beliefs.)

People who know him have remarked on Kavanaugh’s extreme partisanship. As his record has emerged, his strong bias for authority is becoming clearer.

(CNN)Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.

Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail”in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.
Kavanaugh has often embraced the “unitary executive theory” beloved by Dick Cheney. An embrace of that theory by the Court would mean that an independent prosecutor–who is structurally part of the Executive Branch–would always serve only at the “pleasure of the President.”

U.S. Supreme Court nominee Brett Kavanaugh once questioned the correctness of the 1974 high court decision that forced then-President Richard Nixon to turn over secret White House tape recordings and led to his resignation…..The 1974 United States v. Nixon ruling unanimously rejected the president’s claim that executive privilege protected him from having to release the tapes to a special prosecutor…

Kavanaugh said the president, not the attorney general, is the country’s “chief law enforcement officer.”

These views didn’t prevent him from relatively enthusiastic participation as a lawyer working with Ken Starr during Starr’s investigation of President Clinton. But then, Clinton was a Democrat.

This preference for an expansive view of Presidential power ( when Republicans are exercising that power) raises some fairly serious concerns. If government has the authority to overrule intensely private decisions about procreation, and if the President’s authority over that government cannot be subjected to independent investigation, what other decisions is the President free to impose on the citizenry? What happens to other important checks and balances? The rule of law?

Yesterday, the New York Times editorial board highlighted several of Kavanaugh’s previous rulings in an editorial warning that his confirmation would hamper government’s ability to protect citizens against corporate overreach and would further expand the gap between rich and poor.

In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January.

The editorial had much more–and the more we learn, the worse Kavanaugh looks.

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