• Max Stearns

Gutting the Center


I have always considered myself a centrist. I believe that, subject to minimal limitations clarified well in advance, reproductive rights are essential to women's health, safety, and personal destiny; that it is possible to reconcile legitimate concerns for excessive governmental regulation with the insight that markets have a special capacity to improve our lives by producing wealth and technology from which we all benefit; that personal matters such as religion, who to marry, and how consenting adults lead their most intimate lives should remain personal; that the state may regulate corporate political activity, but must protect the rights of actual persons to engage broadly in speech; that the state may, within limits, enact benign regulations respecting race and gender to make up for past historical practices, even if the Supreme Court has forced word games to get there; that science matters and that global climate change is real; and, yes, that reasonable gun regulations are consistent with the actual meaning (and longstanding interpretation) of the Second Amendment. These personal views are typically irrelevant to how I teach. For the most part, they have tended not to raise the ire of students, although they have sometimes elicited the curiosity of colleagues. Even in 1992, when I started teaching, the legal academy tended to be more ideologically bimodal than the nation as a whole. Today those differences might be less stark. At George Mason Law School (now the Scalia Law School), where I taught from 1992 to 2005, I was often viewed as a leftie. At Maryland Carey Law, where I have taught since 2005, I'm sometimes regarded as occupying the right. I now find these misguided characterizations less bothersome than amusing.

What I’m not amused by is the overwhelming trend in American politics to accomplish nationwide what I’ve personally observed for most of my career. Imagining no center, those occupying our ideological endpoints easily characterize anyone failing fully to join them as permanently encamped on the other side. Those on the right view everyone not like them as on the hard left; those on the left view everyone who is not like them as on the hard right. But it’s worse than that. There is a broad campaign to gut the center, to eliminate it as a coherent position, and to ensure that only the endpoints remain. This dangerous trend might be irreversible.

The specific forces are as coordinated as they are damnable. Some examples:

Partisan gerrymandering: Partisan gerrymandering isn’t new. The original gerrymander, of course, was the brainchild of Elbridge Gerry, who ensured victory by constructing his district in the shape of salamander, hence “Gerrymander.” The practice dates to the earliest days of the republic, and some date it as far back as ancient Rome. But the incidence and consequence of today’s partisan gerrymanders are more extreme. The Constitution’s framers envisioned that each house in Congress would respond to a different constituency. Senators would seek the favor of the state as such; state general assemblies could determine how they were chosen, including simply selecting senators on their own. Members of the House of Representatives would, instead, seek the favor of geographical districts whose composition was primarily affected by decennial census data. The Seventeenth Amendment, ensuring direct elections of Senators, changed these constituencies. Senators campaign in the state as a single district, with state general assemblies having lost the capacity to threaten displacement. Partisan gerrymandering, however, flips that original model by instead providing state general assemblies control over the House. The controlling party within the state legislature has the power not only to exert disproportionate influence based on party percentages; it can also punish elected House members of the same party who fail to deliver on policy by imposing, or threatening, revised district lines that invite primary challenges by those more willing to deliver. For a long time, these practices have pushed the House membership toward the political extremes on both sides, at least as compared with the Senate. Unlike House districts, state borders cannot be gerrymandered. Today, as the center has been gutted more generally, the ideological compositions of the House and Senate are less distinct. The Supreme Court has occasionally flirted with limiting partisan gerrymandering. Justice Kennedy repeatedly suggested that he might just join his liberal colleagues to make that happen. Immediately before announcing his retirement, he effectively conceded giving up. Partisan gerrymandering will continue disproportionately to entrench the party in power and to punish political moderates.

Corporate speech: In a major NYT article today, Adam Liptak explains how liberals and conservatives largely traded places on free speech. This has been particular hard on moderates, including me. I firmly support free speech, and I still think of this as a liberal (and Liberal) value. Liptak’s thoughtful article nonetheless appears to me to miss an important point: one can embrace free speech yet oppose Supreme Court rulings that treat corporations as if they are flesh and blood persons. And speech enthusiasts need not equate campaign contributions with political communications. Corporations are creatures of the state, and as such, I have always believed that they can be subject to reasonable regulations. This is true even for political speech. This free speech supporter, therefore, rejects Justice Kennedy’s Citizens United v. Federal Elections Commission (2010) opinion as misguided and not compelled by the First Amendment. I also do not believe that supporting free speech equates to supporting unlimited campaign expenditures. Actual persons can say what they like, even if profoundly offensive. And actual persons can amplify their own speech, shouting it loudly (figuratively speaking) on their own dime. This is different from allowing unlimited campaign contributions to such entities as 527 organizations, which campaign with little or no accountability in parallel with sanctioned campaigns. Those expending huge sums of money to advance political interests tend to occupy extreme political end points. Corporations likewise accumulate massive financial assets, well beyond the capacities of normal people. And Citizens United allows corporations to deploys those assets freely for political purposes. The resulting massive financial resources dedicated to campaigns further guts, by silencing, the center.

The media: We live in a world of alternative facts. But it’s worse than that. There’s fake news on both sides, and most people choose, knowingly or not, from the menu they prefer. Option A: mainstream media stories coming in through their FB or Twitter feeds, supplemented with increasingly prevalent unsubstantiated stories that make it harder to distinguish truthful and imagined criticism of Trump’s deeply problematic administration. Or option B: Fox news and various right of center media sources coming in through FB or Twitter feeds, presenting virtually all mainstream media criticism of the administration as “fake news” and vilifying the left as stupid for failing to share their increasingly entrenched distrust. I used to believe that because those of my generation (or older) were weaned on vetted, published, and authored sources, we had a better capacity at spotting the fake stories. Sadly, I’m increasingly doubtful. After being constantly bombarded month after month, year after year, victims get worn down. They begin to lose any sense of anchoring. And with that, they also lose sight of an essential intuition: real news does not systematically and inexorably favor either the left or right. Indeed, this is one of the virtues that makes Vanessa Otero’s project on “All Generalizations Are False” so helpful and important. Knowing which news is real and which is fake empowers the shrinking center.

Our electoral system: As the poles gut the center, there’s a seemingly obvious out. But as H.L. Menkin famously observed: “For every problem there is a solution which is simple, clean and wrong.” Unfortunately, as the parties become more extreme, the solution of a third party, is “simple, clean, and wrong.” Our direct (if filtered) election system is like a political vortex, sucking away such attempted political upstarts, ensuring that only the endpoints remain. To be sure, political parties can change. Early in this blog, I made a prediction based on the insight that the Trump’s candidacy is uniquely problematic, even for mainstream Republicans. I claimed that although it would not fundamentally transform the dimensionality of our politics, meaning that the two party system would remain, Trumpism would likely affect the locations of each party along the dominant ideological spectrum. I imagined a critical mass of fair minded, centrist, Republicans jumping ship, joining with the Democrats. I thought that as the Republicans moved toward populism and base nationalism, the Democrats would realize the importance of welcoming this new constituency, with the effect of moving somewhat closer toward political moderation. In hindsight this demonstrates that, yes, moderates like me can be profoundly naïve. Instead, Trump has transformed the Republican party at its core, turning many who claimed he was entirely unacceptable into apologists, with the result, instead, of having those same persons excoriate those to their left, over and over again, claiming we are constantly over reacting. In turn, this has made those on the left have angrier and angrier, pushing them further and further from the political center, such as it is. Far from moderating, the Democratic party is now emerging the party of democratic socialists.

I increasingly fear that I and other like-minded Democrats, along with the small percentage of Republicans who made good on the promise never to support Trump, will find ourselves politically homeless in 2020. The year is apt. They say "hindsight is 20/20." And in hindsight, this all should have been far more obvious.

I welcome your comments.

#HLMenkin #DonaldTrump #SecondAmendment #FreeSpeech #Gerrymandering #ElbridgeGerry #VanessaOtero #AdamLiptak #NewYorkTimes #JusticeAnthonyKennedy #CitizensUnited

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