American Society is Moving Toward Social Conflict

In a Drain the Swamp segment, John Oliver goes into the promise that candidate Trump made about cleaning up Washington politics. Not surprisingly, Trump never had any intention of doing that. But as he admitted, just spewing the phrase drain the swamp was a real crowd pleaser, even though Trump supporters did not know what it meant.



Trump supporter unclarity about what it means to drain the swamp is yet another of the dozens of issues that is driving Americans apart and potentially toward social conflict. The viciousness of the polarization effort is hard to understate. For example, republican Texas Senator Ted Cruz recently blamed the mass shooting in California on democrats.

False, evidence-free statements like that tend to rile political opposition up. That tends to further polarize the public into intractable, opposing partisan camps. Poll data is showing the depths of the split that Trump and republicans are fomenting. For example, a recent poll indicates that significant numbers of democrats and republicans see each other as racist, ignorant, spiteful and evil.

In addition to that data, there has been a slow, long-term trend of growing distrust among Americans toward their fellow citizens.

Given the data and political reality, it is reasonable to think that if conservative and populist politicians, partisans and special interests maintain their current high level of divisive, usually false rhetoric, partisan distrust will increase. At present, there is no apparent prospect that partisans on the right will rely less on dark free speech any time soon. Social conflict and violence is not inevitable, but as polarization increases, the odds of it happening continues to increase.

What are the odds of a significant and sustained increase in sectarian violence? There is no way to know with precision. Given the tone of vindictive moral outrage coming from the right, about a 25% chance of significant sectarian violence within the next two years seems plausible. If political rhetoric calms down significantly, the chance of violence drops to maybe about a 5% chance in the next two years.

Words really do have consequences. The political right needs to understand that for the good of the country.

B&B orig:

Modes of Constitutional Interpretation

Baird's tapir, a few weeks old

To arrive at desired meanings from an often ambiguous Constitution, various strains of political ideology and the federal courts have applied different conceptual modes to interpret the constitution. For the most part, those modes seem to be generally applied such that what the Constitution means turns out to be what the ideology of the interpreter needs it to mean. In other words, constitutional interpretation arguably is more subjective than objective. That can be seen as politicizing the meaning of the Constitution.

A March 15, 2018 paper by a Congressional Research Service attorney discusses the various modes of interpretation. The following are the the modes the paper discusses. The paper is intended to provide a general overview of the various arguments in support of, and in opposition to, the use of such modes of constitutional interpretation.

Textualism. Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text.

Original Meaning. Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.

Judicial Precedent. The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law. For most, if not all Justices, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.

Pragmatism. Pragmatist approaches often involve the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. Under another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law.

Moral Reasoning. This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution (e.g., “equal protection” or “due process of law”), and that these concepts should inform judges’ interpretations of the Constitution.

National Identity (or “Ethos”). Judicial reasoning occasionally relies on the concept of a “national ethos,” which draws upon the distinct character and values of the American national identity and the nation’s institutions in order to elaborate on the Constitution’s meaning.

Structuralism. Another mode of constitutional interpretation draws inferences from the design of the Constitution: the relationships among the three branches of the federal government (commonly called separation of powers); the relationship between the federal and state governments (known as federalism); and the relationship between the government and the people.

Historical Practices. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning. Courts have viewed historical practices as a source of the Constitution’s meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer.

Constitutional ambiguity: Some parts of the Constitution are mostly clear. For example age requirements and terms in office for members of congress and the President are not generally disputed, if at all. Other parts of the Constitution are ambiguous or even silent on important aspects of what the Constitution says or doesn't say.

For example, the paper described how the US Supreme Court got power to be the final decider of what is Constitutional and what isn't. The Founders could not decide the matter, so they left it ambiguous. The paper comments:

Early in the history of the United States, the Supreme Court began to exercise the power that it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison, the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action. During the two decades following its holding in Marbury, the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action. If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily ascertain the meaning of a given provision within the Constitution, often for the first time, before applying its interpretation of the Constitution to the particular governmental action under review.

That ambiguity reflected the deep, unresolvable disagreements among the Founding Fathers about where the power to decide constitutionality should reside. Given the ambiguity and social complexity, it is not clear than any one of the major modes of constitutional interpretation is necessarily universally authoritative or better than the others.

In view of increasing overt politicization of the federal judiciary, especially under President Trump and an extremist Republican Senate, it is reasonable to think that constitutional interpretation is going to increasingly conform to conservative Christian, pro-business and populist beliefs about what the Constitution means.

The questions all of this raises are mind boggling. Are federal judges morphing into nothing more than partisan politicians in black robes? Or, have they always been that way? Have they been that way in just the last 30 years or so? Should there be an accepted, authoritative mode of constitutional interpretation, or should federal judges and politicians have freedom to see what they want in the constitution? It is possible to establish a single mode of constitutional interpretation? Is it possible for our two-party political system to find and put ideologically less biased judges on the federal bench?

B&B orig: 11/24/18

Essentially Contested Concepts: What is Racism?

Essentially contested concept: Essentially contested concepts (ECC) involve widespread agreement that a concept exists, e.g., racism, fairness, hate, but not on the best realization or real world examples of when the concept applies to speech or behavior. ECC are concepts the proper definition and use of inevitably involve endless disputes about their proper definitions and uses on the part of their users. These disputes cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone. The disputes are socially polarizing and damaging when people in disagreement are unwilling to compromise for the sake of social harmony and function, or any other reason.

Racism: Prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one's own race is superior.

The New York Times reported yesterday that for tomorrow’s Mississippi senate runoff election, Mike Espy, the Democrat challenging the Republican Cindy Hyde-Smith faces a very difficult problem in his campaign. Regarding a recent debate between the candidates, the NYT writes that Espy “had to make a choice: confront Ms. Hyde-Smith over her comments about attending ‘a public hanging’, which evoked the state’s racist history, or take a milder approach to avoid alienating the conservative-leaning white voters who will most likely decide the election.

He chose the latter.

‘The world knows what she said, the world knows that those comments were harmful and hurtful’, Mr. Espy said afterward, sounding not entirely convinced.

In a state where politics has long been cleaved by race, Mr. Espy was reckoning with a conundrum that Democrats face across the South — from Mississippi and Alabama, which have been hostile to the party for years, to states like Florida and Georgia that are more hospitable in cities but still challenging in many predominantly white areas. Even as they made gains in the 2018 elections in the suburbs that were once Republican pillars, Democrats are seeing their already weak standing in rural America erode even further.

Now, as Democrats mount a last-minute and decidedly against-the-odds campaign to snatch a Senate seat in this most unlikely of states, they are facing the same problem that undermined some of their most-heralded candidates earlier this month.

More ominous for Democrats was that the deep losses this year among rural and some exurban whites were not just confined to Southern states where they nominated unabashed progressives with hopes of transforming the midterm electorate. They lost four Senate seats, as well as governor’s races in states like Iowa and Ohio, with more conventional candidates whose strength in cities and upper-income suburbs was not enough to overcome their deficits in less densely populated areas.”

Is this racism or something else?: The question is so obvious it cannot be avoided. Why are many rural white voters seen as so sensitive about a candidate who directly confronts appearances or actual racism that they will be alienated? Is that merely tribal politics with no racist component, or is it evidence of racism? Survey data indicates that social unease among white voters about the impending change in their status from white majority to white minority and accompanying loss of social privilege was the most significant factor in Trump's win in 2016.

Since his election, President Trump has employed rhetoric that millions of Americans consider to be racist. Even House Speaker Paul Ryan once referred to a bit of Trump rhetoric as a “textbook definition of a racist comment”. Not surprisingly, Trump and most of his supporters strongly deny any racism plays any role in their political thinking, their rhetoric or their behavior. Some claim they are merely defending their culture, values and/or history. But that logic is flawed. What they defend includes what was overtly racist at one time all across America. Racism was never limited to just the South, and it still isn't. How can one separate defense of a culture, values and/or history that included racism as a significant component of society from a time before the founding of the Republic from a defense of racism?

Campaigning with one hand tied: In his Senate race, Mr Espy arguably is severely handicapped. For the most part, his opponent can use racist dog whistles to fire up whites who are (i) socially uneasy with impending demographic changes, and (ii) outright racist to some non-trivial degree. She can stoke fear and anger, while Espy cannot mount a rational defense without alienating white voters. She can deny any racism on her part and on the part of her supporters. Given the power of emotions and attitudes such as fear and racism to win hearts, minds and votes, Espy faces an almost impossible task. He has one hand tied behind his back.

Moral questions: Americans are clearly divided about whether populists and Republicans are being racist to some extent in their political rhetoric and behavior. In this, racism arguably is an essentially contested concept. Nearly all racist rhetoric and behavior is constitutionally protected free speech, so there is no legal recourse against it. Since this is in the context of a political campaign, there isn't anything to compromise about. Can one call politics with a racist component immoral to the extent that component exerts influence? If not, why not? Are racism and morality completely unrelated matters?

People like Trump who intentionally employ divisive tactics like racism are acting to normalize a concept that, if acted on in some ways, is illegal. When a leader like Trump works to normalize racism, some non-trivial segment of society adopts the thinking and acts on the new thoughts. If one accepts that President Trump is normalizing racism by employing dark free speech,[1] is that immoral? The law is not the only way to define what is moral and what isn't. Legal actions outside the law can be immoral and this is an example if normalizing racism is an aspect of what Trump is doing, whether he intends it or not or whether he is conscious of it or not.

Can racism include prejudice, discrimination, or antagonism directed against someone of a different race based not on the belief that one's own race is superior, but on a simple dislike of people of another race without any judgment of one’s own racial superiority?

Footnote:
1. Dark free speech: Lies, deceit, unwarranted opacity and fact hiding, unwarranted emotional manipulation including fomenting unwarranted fear, hate, intolerance, anger, racism, xenophobia, misogyny, homophobia, disgust, etc.

B&B orig: 11/26/18

Constitutional Interpretation: The Shifting Defense of Originalism

I believe in individual liberty and personal responsibility. I also believe in science as the greatest instrument ever devised for understanding the world. So what happens when these two principles are in conflict? My libertarian beliefs have not always served me well. Like most people who hold strong ideological convictions, I find that, too often, my beliefs trump the scientific facts. This is called motivated reasoning, in which our brain reasons our way to supporting what we want to be true. Science historian and prominent libertarian, Michael Shermer commenting in 2013 on his epiphany about how political ideology elicits the powerful, unconscious motivated reasoning bias and what effect on conscious reason it has.

A recent B&B discussion centered on different modes that courts and others have applied to interpret the constitution. From this observer's point of view, some modes of interpretation such as originalism is a means that many political ideologues employ to reason or rationalize their way into finding interpretations that fits with their personal ideology and morals. According to one source, originalism arises from one of three theories of interpretation, original intent, original meaning and textualism:

The original intent theory, holds that interpretation of a written constitution is or should be consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.

The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Antonin Scalia, are associated with this view.

Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.

Andrew Shankman, Associate Professor of History at Rutgers University-Camden commented on originalism as described in his 2017 book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding. In view of his book and his academic position, it is reasonable to see Shankman as an expert on the topic of constitutional interpretation. Shankman's essay is entitled What Would the Founding Fathers Make of Originalism? Not much. Shankman examines the validity and authority of originalism based on his interpretation of the record of thinking and behavior of Hamilton, Jefferson and Madison (HJM).

Shankman: “President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.”

Shenkman poses the question of whether there is a solid historically defensible claim for applying the original intent theory of originalism. He asserts that the historical records of thinking and behavior by HJM “shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings.” The conclusion he draws is that Hamilton and Madison both endorsed a “living, expansive, and flexible Constitution, one that changes with the times and over time.”

For context, the idea of originalism is new and championed mainly by politically conservative ideologues. Historian Mary Sarah Bilder commented:

“The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word ‘originalism’ began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s ‘original public meaning’ — a term of art that originalist scholars have written thousands of pages trying to explain.”

According to one commentator, proponents of originalism have begun to change the intellectual basis of their support for the concept because historians keep showing there the historical record simply does not support originalist reason or rationalizations. The new intellectual battle ground has shifted to history-free safe zones including the philosophy of language and legal doctrine:

Whether it be the various political, social, or economic contexts from which the Constitution developed, the motivations of the participants involved in its construction, or the broader purposes that constitutional partisans hoped to achieve through its enactment, none of these have much bearing on the Constitution’s purely linguistic public meaning.

In short, Originalism 2.0 was a neat trick: it had the imprimatur of history without the actual work and, in fact, asserted that the work was wholly unnecessary. This turn towards public meaning has enabled originalists to claim, as they now frequently do, that they and historians, by targeting categorically distinct kinds of meaning, are simply engaged in fundamentally different tasks. The Constitution’s legal and historical meaning are simply different in kind. If historians claim otherwise, it is because they are guilty of conceptual confusion; because they have made—not a historical error—but a philosophical one. Rather than pledging to do history—as Originalism 1.0 did—Originalism 2.0 claims instead to have escaped history.

In other words, originalists have stopped trying to beat historians at their own game—by rewriting the very rules by which that game is played. They seem to have realized that they will never know as much as historians about the Constitution’s origins or historical development, so instead of fighting a losing empirical battle why not stake out different conceptual foundations altogether? That way, most disputes can turn on philosophy of language, interpretive method, and legal doctrine (as they now do) without dwelling on the details of the historical past. And if historians wish to object, they dare not mention the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century; they must, instead, offer a series of methodological and philosophical arguments targeting originalists’ conceptual formulations. In other words, historians must fight originalists on their own non-historical turf. So even while those few historians who have engaged Originalism 2.0 have leveled a persuasive bevy of criticisms against it—Jack Rakove has correctly called it “tone deaf to the past” and Saul Cornell has appropriately labeled it “thin description”—champions of Originalism 2.0 have easily sidestepped such assessments. For, in appealing to precisely the kinds of historical materials that originalists have studiously circumvented, historians have played into originalists’ hands. Originalists have not engaged this historical work on its merits, but simply dismissed it as irrelevant, mocking historians’ conceptual confusion in the process.

Motivated reasoning in politics: If the shift in defense of originalism from arguing historical antecedents to non-history sources of authority accurately assesses the situation, it is a brilliant maneuver. Originalists have the problem of pounding the irregular-shaped constitution that lies over the irregular-shaped real world to fit into the perfectly square peg of political, social and religious conservatism. They tried relying on fake history and that failed. Originalists finally conceded that point. They have retreated to defenses that ignore history. If that isn't a case of motivated reasoning distorting reality to fit ideology, then what is?

B&B orig: 11/29/18