Beating That Dead Horse….

Last night, I spoke at the Indianapolis-Marion County Public Library, addressing–what else?–the Constitution and our current governmental dysfunctions… Regular readers have seen the following arguments before…

by Sheila Kennedy | October 25, 2017

Over the past several years, American political debate has become steadily less civil. Partisan passions routinely overwhelm fair-minded analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). During the recent election cycle, it was clear that in many cases, Americans were pontificating past each other rather engaging with opponents through thoughtful public discourse.

The title of this talk is “How the Constitution Drives Policy.” I’m going to expand that a bit. In America, the Constitution certainly should drive policy, because the Constitution and Bill of Rights provide a framework for legislation and limits on the sorts of measures policymakers can legitimately enact. But I am also going to talk about the ways in which our political and electoral systems—some embedded in the Constitution and some not—are distorting Constitutional norms and undermining democratic values. Those systems are also driving policymaking—and the result is a federal government that isn’t working properly, and sometimes not working at all.

Speaking of “drivers,” I am firmly convinced that there are three primary “drivers” of the rancor and partisan nastiness that is distorting our efforts at civil communication and preventing the operation of genuinely democratic governance. One is the pace of social and technological change, especially but not exclusively the Internet and social media; one is what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government; and the third is a combination of systemic malfunctions that have left us at the mercy of what pundits have accurately described as “tyranny of the minority.”

There is not much we can do about the pace of social and technological change, beyond recognizing the degree to which people find it disorienting. Despite desperate attempts to keep things as we mis-remember they were, “Stop the world I want to get off” doesn’t work. But we can and should address civic ignorance and we can and should fix our broken political systems.

I first recognized the degree to which our schools don’t teach civics when I began teaching at IUPUI. My undergraduate students had never heard of the Enlightenment, often couldn’t define government, and had little to no constitutional knowledge. I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

We elect a U.S. senator for how many years? 11%

Who was the first President of the United States? 23%

In a recent national survey, only 26 percent of Americans could name the three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them. More than a third (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power. During the recent attempt by Congress to repeal the Affordable Care Act, polls found that a third of Americans didn’t know that Obamacare and the Affordable Care Act were the same thing.

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

An acquaintance with the history and philosophy that shaped what I call “the American Idea” is critically important for understanding why we do things the way we do; when we understand the roots of our national approach to government, to civil liberties, and to civil and human rights, we are better able to decide what proposals and policies are consistent with that approach. We are also better able to hold elected officials accountable if we know what they are supposed to be accountable to.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty.  

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined 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 ensure that their neighbors were worshipping and obeying the right God too. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system was based on an Enlightenment concept we call “negative liberty.” The Founders believed that fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t know that.

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about individual rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in their buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the natural rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about government and the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach to individual rights and the nature of citizenship also helped to undermine the once-common practice of assigning social status on the basis of group identity.

The once-radical idea that each of us is born with the same claim to rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of this or that group. America was the first country to base its laws upon a person’s civic behavior,not gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender or other identity.  When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentments, religious intolerance and misogyny, until recently we had made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation.

In addition to civic equality, however, respect for individual rights also requires democratic equality—an equal right to participate in self-government.  We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest. And that brings me to the systemic issues we face, and the ways in which outdated elements of our election system—some of which are rooted in the Constitution—are driving undemocratic and even destructive behaviors.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and norms and laws shape how we understand and interpret our environments, and how familiarity with the “way things are” can obscure our recognition of systemic problems. For quite a while now, familiarity with “the way we do things” has obscured the degree to which American democracy has become steadily less democratic—and the extent to which we are denying more and more of our citizens the right to participate meaningfully in self-government.

The current operation of the Electoral College gives disproportionate weight to the votes of rural voters and those from small states, and discounts the votes of urban Americans. It’s not simply the fact that in two of the last four elections, the candidate with fewer votes won the Presidency; the lopsided influence of rural America has also given us legislation and policies that are demonstrably at odds with the desires of most Americans and arguably at odds with important Constitutional principles.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. The Constitution allows each state to manage its own voter registration and election processes, and that facilitates a lot of mischief. Voter ID laws that target the virtually non-existing problem of in-person voter fraud intimidate and discourage poor and minority voters—and that is their real purpose.

Unequal resources have always been a problem, but ever since the Supreme Court decided Buckley v. Valeo, and equated money with speech, and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes, voices and opinions of average citizens.  

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both parties are guilty.

You all know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and draws districts that maximize its own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but with the advent of computers, the process became far more sophisticated and precise, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around. Recently, the respected Cook Report looked at the nation’s political map, and concluded that only one out of twenty Americans lives in a competitive Congressional district.

Thomas Mann and Norman Orenstein are political scientists who have written extensively about redistricting. They have tied partisan redistricting to the advantages of incumbency, and they have also pointed out that the reliance by Congressional candidates upon maps drawn by state-level politicians reinforces what they call “partisan rigidity” — the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even though the same party usually retained control.

The most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice—last year, out of 100 candidates for the Indiana House of Representatives, 32 ran unopposed.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance should be considered a civil right, partisan game-playing making elections meaningless should be seen as an assault on human rights. And increasingly, citizens see it that way. We can only hope that Gill v. Whitford, a Wisconsin gerrymandering case currently before the Supreme Court, will give us a tool we can use to put an end to partisan redistricting that disenfranchises so many voters.

It’s important to recognize that the safe districts created by gerrymandering do more than simply disenfranchise voters; they are the single greatest driver of government dysfunction. In safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

One consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties— especially but certainly not exclusively in the Republican party— and an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

When you combine civic ignorance with extreme partisanship, constitutional compliance gets lost.

American citizens aren’t asking “Is this proposal or law constitutional? Is it consistent with America’s distinctive approach to the proper role of government and the rights of the individual?” Instead, too many of us approach our political affiliations in much the same way as we do our favorite sports teams. Rather than asking whether a proposal or law is consistent with America’s constitutional philosophy, or even whether it advances the common good, Americans ask “Is this good for my team?”

We have substituted tribal loyalty for constitutional fidelity.

For a number of years, social scientists have tracked 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, basic understanding of what our particular Constitutional system requires.

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. We aren’t having disagreements at the margins between well-informed people who agree on basic facts. We are having tantrums, thrown by people who surf the internet for confirmation of their preferred realities.

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules cover, how should they be made, who should get to make them and how should they be enforced? Those who crafted our Constitution came up with certain answers to those questions, and if we are to communicate with each other, we need to know what those answers were.

The Constitution our founders created reflected their assumptions about human nature and accordingly, privileged certain values—values that need to be explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our understanding of public morality.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods like the one we are experiencing now are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, 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, and a legal system that emphasizes the importance of fair processes–and when our elected officials aren’t obeying those norms, when they are distorting and undermining the underlying mechanics of democratic decision-making, our government can’t function properly.

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. 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 as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, reinterpret our Constitution, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust required to make our democratic institutions work.

When it comes to accountability and trust, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without shared ground—without trust in a common understanding of our nation’s foundations and commitments– we cannot have civil dialogue, let alone political agreement. Without it, we can’t repair our broken government.

If we are to rescue our electoral systems, restore our democratic norms, and come together as an American community rather than a collection of warring tribes, we have to start where this nation started—with the Constitution. We need to inform ourselves—accurately–and we need to insist that those political figures who love to whip a small copy of the Constitution out of the pockets of jackets with flag pins on the lapels actually understand what that document means, and where it came from—and that they behave in accordance with its values and principles.

It may be that this very difficult time we are going through is a test. If so, we’re in danger of failing. We Americans need to get our act together before the bell rings. The way to make America great is to make America live up to its Constitutional commitments and principles.

Thank you.