The American Democracy: Some Thoughts

In an interview the Hidden Brain program that NPR broadcast a couple of weeks ago, Harvard history professor David Moss discussed his analysis of civil conflicts in the US. He studied about twenty instances of significant conflict and what effects they had on the American republic and its democratic progression.

In general, Moss found that the conflicts were productive in the sense that, despite intense partisan disagreements, American democracy was improved in some way or another. The fundamental glue that held democracy together was a belief by most people in the democratic ideal. Their disputes were not about American democracy, but about social or political issues. The only exception where the glue failed to hold was in dispute over slavery where the South was willing to defend that social institution even at the expense of dissolving the union.[1]

In general, Moss is optimistic about America’s political polarization. He pointed out that on many occasions in the past, many people felt the country was falling apart and would fail as a single nation. He called those false positives, i.e., it looks bad , but it really isn't, a common occurrence in the social sciences.

But what about the false negatives, where something seems more or less OK, but it turns out much worse? Hindsight can often spot these things, but even that is usually contested to some non-trivial degree or another.

So, what is the glue that holds Americans in political dispute together? Moss argues it is the belief among people in disagreement that even if their side loses a dispute, the people on the other side will do the right thing and govern reasonably well and reasonably fairly. Moss cites Gallup poll data: In the 1970s, 15% of Americans reported they had little or no confidence that the other side would govern well or fairly. Today that number is 43%. America’s social glue is much weaker now than it was 50 years ago. And given the harsh tone of rhetoric and presumably increasing polarization and intolerance, it seems rational to think the glue will weaken more in time.

What evidence is there for weakening social glue?: Although it is only one data point, the presidential greatness survey published in January of 2108 included its first assessment of president Trump for his first year in office. His ranking was last among all US presidents. The survey included this assessment about Trump’s polarizing presence:

“In the current polarized political climate, we thought it would be interesting to ask which presidents were considered by presidency experts to be the most polarizing. To do so, we asked respondents to identify up to five individual presidents they believed were the most polarizing, and then rank order them with the first president being the most polarizing, the second as next most polarizing, and so on. We then calculated how many times a president was identified as well as their average ranking.

Donald Trump is by far the most polarizing of the ranked presidents earning a 1.6 average (1 is a “most polarizing” ranking). Lincoln is the second most polarizing president of those presidents ranked. He earned a 2.5 ranking. This is close to Polk as the second most polarizing president at 2.6. Trump was ranked “most polarizing” by 95 respondents and second most polarizing by 20 respondents. For comparison, Lincoln, the second most polarizing president on average, received 20 “most polarizing” rankings and 15 second “most polarizing” rankings.

President Trump is ranked as the most polarized by all party identifiers. On average, Republicans view President Trump one full spot less polarizing than Democrats. Independents found President Trump the most polarizing president than either Democrats or Republicans and in general Independents rank President Trump as the most polarizing president of any modern president.”

Lincoln was highly polarizing because of his opposition to allowing slavery in the new states in the West. That led to civil war. But what is it that makes Trump so polarizing? Many or most Trump supporters might simply reject the data and point to Obama and Hillary Clinton as the current source of polarization. Personal experience with citing this survey had led at least some Trump supporters to instantly reject it out of hand as pure propaganda and/or partisan lies.

Assuming Trump supporters are wrong about this, what is it that Trump advocates? There is more than a little objective evidence to support a belief that he is racist, sexist, homophobic, xenophobic, corrupt, unethical/immoral, a chronic liar/BSer, anti-democratic, a traitor, and an oligarch/despot.

But, what agenda or issue does that boil down to? In the case of president Lincoln, it was easy to spot the issue that tore America apart. In the case of Trump, the issue(s) seems amorphous. It isn't any one thing. It seems more about playing on a general sense of a combination of social, demographic and economic grievance and/or anger-fear-unease. Trump is clearly playing our emotions to tear us apart, but there just doesn't seem to be a unifying issue.

If that analysis is basically correct, it raises the question: Does there have to be a unifying issue and was the case with Lincoln and slavery? Can Trump tear America apart simply by being what he is, i.e., a highly skilled manipulator of reality, reason and emotions?

Hitler was a highly skilled manipulator of reality, reason and emotions, but at least there was deep economic pressure at work. One could see that as part of what brought Hitler to power. But that does not apply to the US at present. The economy is very good (if one ignores the debt, hidden costs, environmental danger, etc).

A second indicator of social glue strength: Professor Moss seemed to be basically optimistic that current social conflict is, maybe based on statistics alone, likely to be just more constructive conflict that won't amount to a hill of beans long the long run. Maybe that is right. False negatives are much more common than false positives, at least for this situation.

To assess the danger, Moss pointed to the level of trust in fellow citizens as an indicator of social health. But he also raised a second indicator, assessment of the frequency at which politicians and partisans ON YOUR OWN SIDE put party and/or partisanship above country. Now, that is a downright bizarre measure of social-democratic health -- it ignores human cognitive and social concerns. To see when your own side puts party above country, a person needs to adopt an anti-bias political ideology, morals, and mindset. Very few people apply that to politics. On this point, Moss is flat out naïve because most people (≥ ~95% ?) simply cannot do what Moss asks them to do.

The anti-bias view: Fortunately, this commentator does at least try to apply an anti-bias ideology, morals and mindset to politics. If one looks dispassionately at existing evidence about Trump’s mind and morals, there is objective evidence that he puts himself and to a less extent partisanship above country. One can argue that democrats are not perfect. They can put special interests with money before the public interest, with the tax code and democratic complicity in massive tax evasion, currently roughly $500 billion/year, being a prime example.

On balance, one can argue that many or most republican, populist and conservative politicians put party before country more often than democratic and liberal politicians. But whether that is true or not, what does it say about the long-term prospects for the American experiment? Moss’ second indicator of social glue just does not seem to be particularly helpful, at least under current conditions.

If that analysis is basically correct, are we in a period that will turn out to have been a false negative? At the moment, it does not feel that way and one indicator of social cohesion, trust in fellow citizens, is moving in the wrong direction. What the end result will be is likely an democratic oligarchy, tinged with Christian theocracy. Despotism-oligarchy, with or without democracy, seems to be a common fate of liberal democracies in general.[2] One question is, is the US democracy exceptional in this regard? And, is Trump a false positive? Looks like we going to find out in the next few years.

Footnotes:
1. Moss pointed out that Lincoln opposed expansion of slavery to the new states, and the South could not tolerate that, believing that a rough parity among slave and non-slave states was the only way to preserve their way of economic life. Defense of slavery as a social institution led to the civil war because no compromise was possible.

2. The New York Times on weaknesses of liberal democracies: “Maybe Brazil’s election, along with the rest of the populist trend, represents something more disruptive than a single wave with a single point of origin. Research suggests it exemplifies weaknesses and tensions inherent to liberal democracy itself — and that, in times of stress, can pull it apart.

When that happens, voters tend to reject that system in all but name and follow their most basic human instincts toward older styles of government: majoritarian, strong-fisted, us-versus-them rule.

It’s a pattern that might feel shocking or new in the West, but is all too familiar in Latin America, which has experienced several populist surges like the one that elevated Mr. Bolsonaro.

‘Most attempts at democracy end in a return to authoritarian rule,’ Jay Ulfelder, a political scientist, wrote in 2012 as elected populists in Venezuela, Ecuador and Nicaragua rolled back rights in ways that look familiar today.”

B&B orig: 11/3/18

The Corrupt Conservative-Populist Marketplace of Ideas

Trump commenting on alleged large-scale illegal voting in the 2016 election: It is OK to lie because people agree with me

Essentially contested concepts involve widespread agreement on a concept (e.g., fairness, patriotic, the public interest, etc.), but not on the best realization thereof. They are concepts the proper use and definition of which inevitably involves endless disputes about their proper uses or definitions on the part of their users, and these disputes cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone.

Service to the public interest can be described like this: It means governance based on identifying a rational, optimum balance between serving public, individual and commercial interests based on an objective, fact- and logic-based analysis of competing policy choices, while (1) being reasonably transparent and responsive to public opinion, (2) protecting and growing the American economy, (3) fostering individual economic and personal growth opportunity, (4) defending personal freedoms and the American standard of living, (5) protecting national security and the environment, (6) increasing transparency, competition and efficiency in commerce when possible, and (7) fostering global peace, stability and prosperity whenever reasonably possible, all of which is constrained by (i) honest, reality-based fiscal sustainability that limits the scope and size of government and regulation to no more than what is needed and (ii) genuine respect for the U.S. constitution and the rule of law with a particular concern for limiting unwarranted legal complexity and ambiguity to limit opportunities to subvert the constitution and the law.

One of the four core moral values that underpin the anti-bias political ideology advocated here is service to the public interest. Because this moral value is an essentially contested concept, people will probably disagree forever about exactly what service to the public interest means. The concept as envisioned for anti-bias politics is based on a transparent, honest competition of ideas that looks to objective fact and logic, to the extent those things can be brought to bear, to balance competing interests in the quest for the best policy options.

For the most part, conservatives and republicans have pointed to the value of honest competition in leading to social and economic improvements. The anti-bias ideology simply applies that belief to inform and shape policy debates. If asked, it is likely that most conservatives, republicans and populists (~75-85% ?) would say their own politics is based mostly on a fair and transparent, fact- and logic-based competition in the marketplace of ideas.

That conception of how politics works with conservatives, republicans and populists arguably is wrong for the most part. The real conservative-populist competition of ideas: Lies, deceit & unwarranted emotion: CNN recently reported that Twitter had taken down thousands of accounts that discouraged voting in midterms. Most of the accounts were set up by republicans posing as Democrats. One deleted Tweet falsely claimed that ICE agents would be patrolling voting places. That was a lie intended to create fear to drive down voting by legal immigrants who are qualified to vote.

Reuters reported that over 10,000 Twitter accounts posting messages that discouraged people from voting had been taken down.

The Washington Post reported that Facebook and Twitter are working to eliminate sources that try to deter voting in the election next Tuesday. WaPo writes:

“With the 2018 midterms days away, both social media platforms are waging a quiet war against fast-spreading falsehoods about how, when and where to vote — including posts containing inaccuracies about how to mail in ballots or doctored photos that show long lines at polling stations. To do so, they are taking aggressive steps to scan, vet and remove content that they see as a direct threat to democracy.

Attempts to depress turnout are hardly new: For decades, government officials have battled back anonymous snail-mail fliers and robo-calls that misled voters on the locations of their polling places or the date of the election. But voter suppression increasingly has become more of a digital scourge — from robo-texts en masse to viral photos and videos in the age of Facebook and Twitter.”

President Trump’s constant use of lies and deceit to foster fear are documented. In recent weeks Trump has has particularly focused on stirring unwarranted fear in Americans, for example, by claiming with no evidence that an immigrant caravan approaching the US-Mexico border is loaded with hostile criminals and terrorists.

Last Friday, a federal judge ruled that an attempt by the Georgia’s Secretary of State, Brian Kemp, was an illegal attempt to suppress voting by minorities. WaPo wrote: “U.S. District Judge Eleanor L. Ross ruled Friday that the procedures were likely to result in the violation of voting rights for a large group of people and needed to be halted immediately. She said Kemp’s restrictions raised ‘grave concerns for the Court about the differential treatment inflicted on a group of individuals who are predominantly minorities.’” In this case, a conservative republican used an illegal tactic to suppress voting.

Other republican voter suppression tactics in Kansas and North Dakota survived legal challenges and significant numbers of legitimate voters in those states may not vote in view of increased voting barriers. More generally, conservative states have been raising barriers to voting by minorities and democrats. One analysis discussed the conservative anti-voting trend: “In 2018, voters in at least eight states will face more stringent voting laws than they did in the last federal election. These restrictions are a continuation of a trend, beginning in 2011, of states passing laws making it harder to vote. Overall, voters in 23 states will face tougher restrictions than they did in 2010.”

Another source comments: “Across the country, Republican governors, secretaries of state, and state lawmakers — some of whom are on the ballot this fall — have been tightening the restrictions on voting in dozens of states citing concerns about voter fraud. The result is that voters in North Dakota, Ohio, Missouri, Kansas, and New Hampshire, among other states, are facing restrictive voter ID laws and purges of voter names from the rolls. These restrictions often benefit Republicans, studies have found, because minorities, young voters, and others who might struggle to meet their requirements often vote Democratic.”

Another prominent conservative and populist lie in this election is the argument that republicans will best maintain health care protection for people with pre-existing conditions. Republican politicians across the country have repeatedly tried to eliminate protection for pre-existing conditions. Many conservative states and some politicians running for office are actively pursuing a legal challenge to eliminate the protection. The lie is undeniable, but republican politicians deny it anyway.

One example of lying about his position on pre-existing conditions comes from Wisconsin Gov. Scott Walker (R). Walker said in October “I want to reinforce it to everyone — we will always cover people like my wife with preexisting medical conditions. Don’t believe the lies. Don’t believe the lies!”

In that case, Walker was lying about his lying.[1]

Conservative tactics of (i) deceit and lies, especially deceit and lies that elicit unwarranted fear, and (ii) efforts to suppress voting by political opposition, do not amount to anything close to a fair and honest competition of ideas. These tactics amounts to anti-democratic methods to suppress political opposition and to instill unwarranted fear among potential voters. Obviously, most republicans, conservatives and populists strongly deny that they are heavily relying on lies, baseless fear mongering or unwarranted voter suppression tactics in this election.

And, since service to the public interest is a contested concept, the ones most honest can defend these tactics by arguing that lies and voter suppression best serve the public interest by leading to power for republicans, conservatives and populists. Basically, that is a ‘means justify the ends’ kind of rationale.

Footnote:
1. In the last few days, Walker has claimed that he truly wants to cover people with preexisting medical conditions. One source reported: “Republican Gov. Scott Walker, locked in a tight re-election bid, said Thursday for the first time that he wants to enact the ‘exact same language’ that’s in federal law at the state level guaranteeing insurance for people with pre-existing conditions. However, the proposal would not protect as many people as the federal law does and it’s unclear whether there’s enough support in the Republican-controlled Legislature to pass it. . . . . A Marquette University Law School poll on Wednesday showed the race to be a dead heat, with health care as a top issue.”

For context, Wisconsin is one of 20 republican states that is suing to eliminate coverage under Obamacare for pre-existing conditions.

B&B orig: 1/4/18

Executive Order -- Using Behavioral Science Insights to Better Serve the American People

This is an executive order by president Obama from September 2015. It makes sense to post it here in case president Trump gets around to deleting it as a vestige of his hated enemy.

Obama presumably did this via executive order because the republican congress hated Obama's guts with a white hot vengeance no less intense than Trump's raging hate. Politically speaking, passing a law like this in 2015 was utterly impossible.

EXECUTIVE ORDER

USING BEHAVIORAL SCIENCE INSIGHTS TO BETTER SERVE THE AMERICAN PEOPLE

A growing body of evidence demonstrates that behavioral science insights -- research findings from fields such as behavioral economics and psychology about how people make decisions and act on them -- can be used to design government policies to better serve the American people.

Where Federal policies have been designed to reflect behavioral science insights, they have substantially improved outcomes for the individuals, families, communities, and businesses those policies serve. For example, automatic enrollment and automatic escalation in retirement savings plans have made it easier to save for the future, and have helped Americans accumulate billions of dollars in additional retirement savings. Similarly, streamlining the application process for Federal financial aid has made college more financially accessible for millions of students.

To more fully realize the benefits of behavioral insights and deliver better results at a lower cost for the American people, the Federal Government should design its policies and programs to reflect our best understanding of how people engage with, participate in, use, and respond to those policies and programs. By improving the effectiveness and efficiency of Government, behavioral science insights can support a range of national priorities, including helping workers to find better jobs; enabling Americans to lead longer, healthier lives; improving access to educational opportunities and support for success in school; and accelerating the transition to a low-carbon economy.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, I hereby direct the following:

Section 1. Behavioral Science Insights Policy Directive.

(a) Executive departments and agencies (agencies) are encouraged to:

(i) identify policies, programs, and operations where applying behavioral science insights may yield substantial improvements in public welfare, program outcomes, and program cost effectiveness;

(ii) develop strategies for applying behavioral science insights to programs and, where possible, rigorously test and evaluate the impact of these insights;

(iii) recruit behavioral science experts to join the Federal Government as necessary to achieve the goals of this directive; and

(iv) strengthen agency relationships with the research community to better use empirical findings from the behavioral sciences.

(b) In implementing the policy directives in section (a), agencies shall:

(i) identify opportunities to help qualifying individuals, families, communities, and businesses access public programs and benefits by, as appropriate, streamlining processes that may otherwise limit or delay participation -- for example, removing administrative hurdles, shortening wait times, and simplifying forms;

(ii) improve how information is presented to consumers, borrowers, program beneficiaries, and other individuals, whether as directly conveyed by the agency, or in setting standards for the presentation of information, by considering how the content, format, timing, and medium by which information is conveyed affects comprehension and action by individuals, as appropriate;

(iii) identify programs that offer choices and carefully consider how the presentation and structure of those choices, including the order, number, and arrangement of options, can most effectively promote public welfare, as appropriate, giving particular consideration to the selection and setting of default options; and

(iv) review elements of their policies and programs that are designed to encourage or make it easier for Americans to take specific actions, such as saving for retirement or completing education programs. In doing so, agencies shall consider how the timing, frequency, presentation, and labeling of benefits, taxes, subsidies, and other incentives can more effectively and efficiently promote those actions, as appropriate. Particular attention should be paid to opportunities to use nonfinancial incentives.

(c) For policies with a regulatory component, agencies are encouraged to combine this behavioral science insights policy directive with their ongoing review of existing significant regulations to identify and reduce regulatory burdens, as appropriate and consistent with Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and Executive Order 13610 of May 10, 2012 (Identifying and Reducing Regulatory Burdens).

Sec. 2. Implementation of the Behavioral Science Insights Policy Directive. (a) The Social and Behavioral Sciences Team (SBST), under the National Science and Technology Council (NSTC) and chaired by the Assistant to the President for Science and Technology, shall provide agencies with advice and policy guidance to help them execute the policy objectives outlined in section 1 of this order, as appropriate.

(b) The NSTC shall release a yearly report summarizing agency implementation of section 1 of this order each year until 2019. Member agencies of the SBST are expected to contribute to this report.

(c) To help execute the policy directive set forth in section 1 of this order, the Chair of the SBST shall, within 45 days of the date of this order and thereafter as necessary, issue guidance to assist agencies in implementing this order.

Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative

proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) Independent agencies are strongly encouraged to comply with the requirements of this order.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

BARACK OBAMA

THE WHITE HOUSE,
September 15, 2015.

B&B orig: 11/7/18

A New Basis for Impeachment: Dark Free Speech

“But it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” U.S. Supreme Court in Thomas v. Collins, 323 U.S. 516, 545 (1945)

One troubling aspect of Donald Trump both as a candidate and as president has been his unrestrained and constant use of lies, deceit and opacity to get what he wants. Trump has been assessed by experts as the worst president in US history and also the most polarizing:

“In the current polarized political climate, we thought it would be interesting to ask which presidents were considered by presidency experts to be the most polarizing. To do so, we asked respondents to identify up to five individual presidents they believed were the most polarizing, and then rank order them with the first president being the most polarizing, the second as next most polarizing, and so on. We then calculated how many times a president was identified as well as their average ranking.

Donald Trump is by far the most polarizing of the ranked presidents earning a 1.6 average (1 is a “most polarizing” ranking). Lincoln is the second most polarizing president of those presidents ranked. He earned a 2.5 ranking. This is close to Polk as the second most polarizing president at 2.6. Trump was ranked “most polarizing” by 95 respondents and second most polarizing by 20 respondents. For comparison, Lincoln, the second most polarizing president on average, received 20 “most polarizing” rankings and 15 second “most polarizing” rankings.”

Trump is tearing American society apart and undermining American democracy and the rule of law. His lies and deceit are key tools he uses to do that.

Is protected free speech impeachable?: Along with alleged obstruction of justice, President Clinton was impeached for lying under oath to congress. That was seen as an impeachable offense. Trump has so far managed to not answer questions under oath, so his lies are simply constitutionally protected free speech.

As noted above, the US Supreme Court in Thomas v Collins basically threw up its hands and said that politicians can deceive and lie to the public as much as they want and it is all good. There are a few rare exceptions, but by and large, lies and deceit are standard tools of political persuasion. Later court cases seem to reinforce the sanctity of free speech, arguing more speech is better than less. That at least implies that no amount or kind of free speech could ever amount to an impeachable offence.

The thing is, though, congress can decide what is an impeachable offence and what isn't. In theory, congress could decide that too much lying and deceit protected as free speech is nonetheless so damaging to the public interest that it can rise to the level of an impeachable offense.

The anti-bias political ideology advocated here consists of four core moral values or principles. Two of those morals are fidelity to facts and fidelity to less biased reason or logic. They are there to try limit the ability of lies and deceit to tear society apart and to undermine the rule of law, democracy and democratic institutions such as a free press. From that moral point of view, Trump's endless stream of lies and polarizing speech can be seen as legal but impeachable. His polarizing free speech foments unwarranted hate, rage, fear, distrust, intolerance, racism and other harmful emotional responses.

Social science is clear that by provoking emotions, people tend to lose their capacity to think rationally. For the most part, emotion kills reason. As pointed out before, most political thinking and belief is probably generated unconsciously. The process is heavily driven by emotion and reactions to emotions. When the Supreme Court decided Thomas v Collins in 1945, there was no major, sustained propaganda war raging against the US as there is now. Propaganda attacks by Russia and China and Trump's own assaults on democracy constitute an existential threat that has not come before the Supreme Court so far.

From an anti-bias morals and mindset point of view, it is reasonable to believe that there is a deadly threat from dark free speech to civil society and liberal democracy generally. If one accepts that viewpoint, it is easy to argue that Trump's speech alone constitutes an impeachable offense, even though he has not lied under oath and thus broken no law.

Yes, there will be criticism of that logic and conclusion. Some will argue it is dangerous because impeaching for dark free speech alone can be abused and help a tyrant-kleptocrat rise to power. That is probably true. The flip side is equally true. Not adopting that logic and conclusion is dangerous because free speech is being abused right now and is helping a tyrant-kleptocrat rise to power, while tearing civil society to pieces and subverting democracy and the rule of law.

B&B orig: 11/9/18

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