Notes on a Theory…

Thoughts on politics, law, & social science

Archive for August 2012

Blaming the People: Democratic Efficiency as a Cop Out

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Mark Graber takes “constitutional populists” to task for failing to blame the real culprits when it comes to our broken system—the people.

        Constitutional populists always assign the blame for constitutional failings to evil institutions which are thwarting the good American people from fully realizing their constitutional commitment to the “Blessings of Liberty.”   If we can just get rid of the Electoral College, eliminate state equality in the Senate, abandon life tenure for federal justices, and change the rules for constitutional amendment, my friend Sandy Levinson and others imply, gridlock would disappear, the American people would cherish their governing officials, and most other ills of contemporary American politics would be significantly alleviated.

This populist optimism fails to acknowledge that the cause of most contemporary constitution ills lie in the character of the American people rather than in American constitutional institutions.  Consider that one major party in the United States routinely runs candidates for public office, most notably the presidency, who deny basic scientific and social science findings.  Give me a billion dollar backer, and I thought I could make hay in the Republican primaries on a platform that questioned the Pythagorean Theorem (the theorem is un-American and no one in the academy permits any dissent from liberal right-triangle orthodoxy).  One does not have to be too skillful at “connecting the dots,” to quote my friend again, to realize that no commonly proposed constitutional amendment is responsive to a society many of whose members reject evolution and think that Mary and Ben’s thirty year marriage will somehow be affected if John and Tony are also allowed to be married.

First off, it seems clear that there is a vast difference between arguing that some reform is needed and believing that achieving that reform will bring about a utopia.  As near as I can tell, this is a strawman.  From what I’ve seen of Levinson, he’s implied no such thing. People generally want to improve institutional structures to improve politics, which I think we all appreciate is a messy business.  Unless you’re trying to place control in the hands of some unaccountable body (Supreme Court, the Fed, etc.) you probably don’t think politics will disappear.

The second point is an example of a fairly common error in logic. Graber’s proof that it’s the people who are the cause of our ills rather than our institutions is statements of candidates running for office and their success. But you can’t prove an outcome is caused by some factor by pointing to the outcome alone.   The whole argument hinges on the assumption that causation runs from the mass of individuals to the functioning of institutions.  It makes more sense to assume that institutions produce such beliefs, to the extent they exist, in people.  But either way, stating the problem is the beginning of the argument, not the end.

A great deal of political science makes the same mistake, as does the bulk of political punditry.  If Congress is dysfunctional, it must be because the people are increasingly polarized. (They aren’t.)  If Republicans win elections, it must be because the people are increasingly conservative. (They aren’t).  If a majority of people say something in a poll, that causes political outcomes, not vice versa. (Wrong again).  (A great resource on all this is Class War?: What Americans Really Think about Economic Inequality by Page and Jacobs).

it strikes me that increasingly the power has been shifting towards those at the top.  Political explanations that rely on formal understandings of how politics work confuse justifications for explanations.

The myth of democratic efficiency is a cop out.  It reassures us that we bear no responsibility for changing things.  It means we don’t have to contest these issues, and seek to change the views of our fellow Americans.  It means we don’t have to build better institutions, mobilize our side, or articular what it is we believe.  It makes us quiescent.

Given the challenges we face, that’s the last thing we need.

Written by David Kaib

August 10, 2012 at 9:40 pm

Partisan Politics and the End of the Union Movement?

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[Updated below]

Back in January, the Center for American Progress put out an issue brief entitled Unions Make Democracy Work Better for the Middle Class.  As it shows clearly, declines in rates of  in union membership and the share of income held by the middle have moved together since the 1960s.  This is just a dramatic illustration of a great deal of evidence that unions produce a stronger middle class and less inequality.  The picture is as clear as it is disturbing.

The point of the chart, as with the report as a whole, was to make the case for the value of unions for society as a whole.  I’m fully convinced, needless to say, but I want to focus on something else for the moment.  Look at the decline in union density and point to where the Democrats held the White House, Congress, or both.  Density certainly declined when Republicans, who have made union busting a central tenet of their faith, have held power, but has it gone up when Democrats have? The Clinton years aren’t distinguishable from the Bush years on either end. There is a small uptick around the beginning of Obama’s presidency, but it’s insignificant in the face of the larger trend.  At this rate, it won’t be that long before union density is zero.  You simply cannot look at this chart and believe that Democratic control of the White House will stand in the way of the end of the union movement or that this is not where we are headed.

This is a fact, and facts, as John Adams said, are stubborn things. Unlike questions about the fate of the Employee Free Choice Act (EFCA), or the impact of Race to the Top (RTTP), or about the relationship between Democrats at the state level and unions, this fact doesn’t leave much room for interpretation.  And it strikes me as one of the more important facts for understanding the challenges for our democracy, our economy, the Democratic Party and the union movement.  Any argument about strategies for the union movement, and the left, has to take this into account.

Something has to be done.  That said, strategies don’t flow automatically from facts, let alone one fact.  Figuring that out requires identifying opportunities, assessing strengths, expanding on models that are working, and any number of other things that facts like this cannot inform.

Of course, a lot of people have been talking about this, but I suspect that even more difficult than finding a roadmap will be enacting the sort of institutional change that would bring it about.  Announcements about change often are nothing more than wishful thinking, and even determined people may find it impossible to turn words into action.  This latter challenge strikes me as the most important piece, and as it stands I’m not sure what the answers are or even what the questions are.

One thing that this sort of institutional change will require is thinking big about what our goals are.  The new report Prosperity for America by Jacob Hacker and Nate Loewentheil and endorsed by the AFL-CIO and a number of other progressive organizations is a great start (I’ll have more to say about that later).  It remains to be seen what will come of this.

But we better figure it out quick.  The clock is ticking on the movement, and our democracy.


The always great Josh Eidelson reports on a janitors’ strike by SEIU members in Texas, not exactly the first place you might think of when you think of unions.  Whether they succeed will depend in part of the pressure allies can being to bear on some of the countries most profitable countries, which contract with the companies that employ these janitors and who likely hold all the power here.  Sadly, it doesn’t seem to be getting much attention from anyone else.  If progressives can’t get mobilized to support working people when they go out on a limb, it’s hard to see how these trends are going to turn around.

Written by David Kaib

August 5, 2012 at 11:26 am

Taxes and the Myth of Democratic Efficiency

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Steve Kornacki notes that 19 House Democrats broke with their party on letting the Bush tax break for the richest to expire.  As always, the willingness of some Democrats to defect on votes that the White House and congressional leadership are trying to use to draw a contrast with the Republicans on muddies the message and makes mobilizing one’s own side more difficult.

To be fair, plenty of House Democrats from competitive districts did vote for their party’s tax plan. But almost every incumbent on the “no” list who is seeking reelection is in a competitive or potentially competitive race. This speaks to a phenomenon I wrote about a few weeks ago – that even though voters tell pollsters they like the idea of raising taxes on the rich, they won’t necessarily reward leaders who do it (and, in fact, they may actually punish them). A number of vulnerable House Democrats are sensitive to this possibility, and the result is less unity on the Democratic side than on the GOP side.

Follow the link and what do you find? A story about how Republicans Senators in Indiana and Utah have found themselves under assault in Republican Party nomination battles –assaults which are of course funded by the elite conservative machine.  This is hardly evidence about what voters in Democratic-held districts want.

Does that mean that voters are itching to reward Democrats for voting for raising taxes on the rich? No.  But voters don’t generally reward legislators for how they vote. If legislators and the party make an issue out of something, if they treat their actions are worthy of being rewarded, they might.  But it doesn’t happen automatically.  Kornacki slips here into the myth of democratic efficiency—the idea that electoral outcomes are a straightforward manifestation of aggregated individual opinions, rather than shaped by institutions and elite strategies.  Hacker and Pierson have detailed why this is not the case in particular with the modern Republican Party.  Progressives generally reject the ridiculous claim that this is how the economy works—that investor confidence and workers laziness is responsible for the recession rather than the reduction of aggregate demand, coming from the crash of the housing bubble, reductions in government spending, opportunities for profit that don’t create jobs, the feedback loop of unemployment, etc.

Yet we all too often accept it in politics.

Written by David Kaib

August 3, 2012 at 12:06 pm

The Death Penalty System is Lawless: Texas to Defy the Law (Again)

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Paul Campos notes the most recent injustice in our death penalty system—the state of Texas plans on executing a man with the IQ of child (for a crime he may well not have even been present for) despite the Supreme Court ruling in Atkins v. Virginia (2002) that the Eighth Amendment bars executions for defendants with “mental retardation.” Read the details if you can stomach it, but Campos sums up the situation well.

Wilson is a poster child – in every sense – for the savage arbitrariness of the death penalty as it is employed by the state of Texas. Poor, black, with the mental age of a six-year-old, he was sentenced to death for his ambiguous role in a drug-trade murder, when literally every day in America people are given far lighter sentences for more heinous crimes.

The death penalty system is lawless – if a state were forced to respect the law and conform with due process, it would collapse.  That this is done in the name of law and order is one of the more patently false claims in politics, which is saying something.  The Venn diagram showing those who vigorously support the death penalty and those who take constitutional rights and avoiding executing the innocent seriously does not intersect.  Killing someone is more important than preventing future crimes, our constitutional system, or playing fair.  It’s worth asking what purposes this serves, because it sure isn’t justice. And no, the fact that our discourse is so lopsided on this issue cannot be blamed on regular people, who are closely divided.  This punitiveness is driven by our failing elites.

Also, remember that 33 states and the federal government still have the death penalty.  It is not isolated to places like Texas, but is common in places where progressives have more leverage. And it will never end there until it’s ended in places like Maryland and California (on the latter see Yes on 34).

Written by David Kaib

August 2, 2012 at 12:01 pm

Thirteenth Amendment and the Normalization of Coercion

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The other day I linked to Balkin and Levinson’s excellent new piece, The Dangerous Thirteenth Amendment.  The basic idea is that, because the 13th Amendment lacks a state action component*, and because coercive relations are exceedingly common outside the context of chattel slavery, a broader understanding had the potential to seriously disturb that status quo (especially racial and gender hierarchies).

Discussing why the North turned against Reconstruction and the cause of equal rights for black (men), Balkin and Levinson noted:

Northern white elites increasingly feared what they perceived as the threat of “socialism”—demands by freed blacks and their white sympathizers for redistributive programs. Elites feared that newly empowered majorities would be led astray by “[w]eak-minded sentimentalists or corrupt demagogues” who would stir up discontent among the masses.  Benedict tellingly quotes a now-forgotten reformer, Abram S. Hewitt, who wrote that “[t]he problem . . . . is to make men who are equal . . . in political rights and . . . entitled to the [formal right of] ownership of property content with that inequality in its distribution which must inevitably result from the application of the law of justice.” (citations omitted)

One might think that it was generations of forced labor, rather than efforts to correct that, were ‘redistribution’.  (This quote is also an important reminder that ‘socialism’ typically means ‘failing to reinforce inequality and hierarchy.’)

There’s a lot to this argument.  But Balkin and Levinson frame the discussion around a choice between 1) understanding the term ‘slavery’ as simply applying to chattel slavery, which they argue was largely how it was meant at the time of the framing of the 13th Amendment or 2) understanding the term more broadly as “the project of ending domination in social life, and securing self-rule and self-sufficiency,” which is closer to how it was understood earlier in history and by later movements that sought to draw on it (like the labor and Civil Rights movements).  But the text itself counsel against this, barring “slavery [or] involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.”  Focusing on that, as well as understanding, as the court long has (as the authors discuss as well), that this extends to “badges and incidents of slavery,” suggests a far wider scope for the 13th Amendment without reaching back into history for alternate meanings. It’s also worth pointing out that the amendment contemplates primarily legislative enforcement, again, like the 14th and 15th Amendments, something that’s been largely ignored but flows logically from both history and text.

That said, when one adds together things like the Preamble, the Bill of Rights, and the 13th and 14th Amendments, I think you get to a fairly radical place, one which does at least question domination in social life.  These provisions all embody the notion of  equal personhood.  There are parallels to be made between chattel slavery and other institutions, and it’s worth engaging these questions.  Breathing life into the 13th would advance this project, which is one more reason why this piece is so important. It reminds us to take seriously the deep resonance between various forms of oppression and various movements of liberation.  Challenging the normalization of coercion, tying together its different forms, is the best sort of politicization, something that is sorely needed.

*I actually think too much has been made of this when it comes to the 14th Amendment.  The Equal Protection Clause requires states to provide the protections of law equally. (It’s easier to notice what it’s saying when you disentangle the words used).  What are the protections of law for? Protecting us from others, especially private actors.  I believe this was the way the clause was understood when it was adopted but that it was rewritten as about government discrimination for the same reasons – a broader understanding was and remains ‘dangerous.’

Written by David Kaib

August 2, 2012 at 12:28 am

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