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Our Political Identity

Updated: Apr 20

Max Stearns


Dear Readers:

As is my custom, I'm sharing with you the closing spiel I gave to my Constitutional Law I students earlier today, April 19, 2021. This is the first time that I've included slides, which the Zoom teaching format made appealing. The relevant slides are noted in bold. Acknowledgements appear at the end of the post.


You might have noticed that I've been a posting a bit less frequently recently. Now that classes are over, I look forward to engaging more with the blog, at least after the grading is done!


I hope you are all safe and well.

Max Stearns




The Spiel [opening slide]:


I have a tradition of ending Constitutional Law I and II with some personal reflections. The course materials are analytically difficult, a problem exacerbated by their sheer volume and increasing ideological valence. The materials increasingly implicate our sense not only of national, but also personal, identity. Over the years, my spiels have covered varied topics: advice to rising lawyers, insights from the happiness literature, guidance on your legal education. I’ve discussed civility, constitutional and midlife crises, and by coincidence given his recent passing, Prince Philip and the moon landing as conveyed in the wonderful TV drama, “The Crown.”


I’m on leave next fall, and I’m planning to write a book. I sense a nation experiencing calm before the next storm. I’ve been reading quite a lot about politics and constitutionalism, in the US, Europe, and around the globe. Today, I want to discuss a phenomenon that has become a focal point among political scientists: how personal identity effects political, even constitutional, crises.


In the US it is customary to cast politics in right-left terms. I spent our opening lecture reflecting on how our partisan divides have undermined the functioning of foundational aspects of our constitutional system. As Professors Richard Pildes and Daryl Levison titled their famous 2006 Harvard Law Review article, our nation is better characterized by Separation of Parties than by Separation of Powers. In the modern era, intense electoral bimodalism has threatened separation of powers, checks and balances, and even federalism. Consider the impact of partisanship on judicial appointments, impeachment proceedings, executive and agency oversight, executive privilege, and most profoundly, our tragic-beyond-words pandemic response.


Despite James Madison’s musings in the Federalist 10, the Framers embedded a two-party system in the Constitution’s DNA. We’ve had a fairly stable two-party system from the jump, although periods of historical transition sometimes witnessed more parties as we shifted from one political equilibrium to another. The last major party restructuring occurred when Abraham Lincoln’s Republican Party put an end to the Whigs.


I’m persuaded that this longstanding design feature—really a design flaw—has become unsustainable. I plan to spend my leave thinking about what we might do about it. I hope to write a book that takes readers on a virtual world tour informed by methodologies that I’ve spent my career developing in my efforts to let my students gain a better understand of complex phenomena. Although our nation managed with this design feature for most of our history, I believe that two changes in the information age have made it unsustainable.


[Gerrymandering slide]


Partisan gerrymandering is hardly new; after all, the term is coined after Elbridge Gerry’s 1812 salamander-shaped district. And yet, modern technology has so transformed the practice that today, members of the House of Representatives, and of General Assemblies in most states, systematically choose voters, not the other way around. By comparison, Gerry’s mander was quaint. (The other side is the infamous North Carolina District 12, as it appeared when contested in the 1992 Supreme Court case, Shaw v. Reno).


The other dynamic is still more recent. Social media fundamentally alters how we interact with and learn about news and news-like information, an ever-blurring line. Most of your generation grew up with Facebook and Twitter, and not the NYT, WAPO, or WSJ, as the primary bases of news consumption.


We are experiencing a feedback loop. Just as congresspersons choose their districts, not the other way around, news sources operating through social media choose their readers, not the other way around. Politicians know this, and like the rest of us, they are affected by it. They target increasingly polarized constituencies. In our bimodal reality, veracity matters less than constituency affirmation, at least for politicians who like their jobs.


[PEW Slide]


Zoom is a mixed blessing, but one upside is that we can visualize the effect with this PEW graphic, demonstrating, strikingly, that increasingly high percentages of Democrats and Republicans are to the left and right, respectively, of the median Republican or Democrat. The trend from 1994 to 2017 is daunting. For a long while, the parties had significant ideological overlap.


[APSA Study Slide]


If we go back further, to 1952, the Democratic and Republican Parties both courted the same candidate to head their ticket: Dwight David Eisenhower. A major political science study commissioned in 1946 and issued in 1950 titled “Toward a More Responsible Two-Party System,” claimed a failing of American politics was the lack of distinction between the two major parties. By contrast, today we are heading into—and might already be in—a world in which two camps are so siloed that they regard each regard the other as living in an alternative, and false, reality. Both sides cannot be right. Please do not imagine that one side always is. It is not.


This gets to identity. Political scientists recognize that in Europe and the US, voters sort over two dimensions: economics/policy and culture/identity. Increased globalization, immigration patterns, changing social norms, transformed gender roles, broadened conceptions of sexuality, the erosion of religion as a defining force in most people’s lives, and perhaps most notably, the elevation of educated elites over traditional categories of status or caste, have transformed politics at home and around the world.


[Teeter-totter slide]


Imagine partisanship as a single line sitting on a fulcrum, like a playground teeter-totter, with one side marked left and the other right. If we move one side's end point up or down, in or out, left or right, we necessarily move the other side's end point down or up, out or in, right of left. In a two-party world, Newton’s third law of motion becomes the first law of politics: Every political transformation effects an equal and opposite political transformation. The dynamic is especially problematic when each side perceives the fight as an existential death battle.


In the past several decades, the culture/identity dimension has become increasingly salient, even dominant, crowding out policy. This has profound implications. It also solves what many regard as a puzzle.


Consider this: During the 2016 and 2020 elections, and throughout the Trump administration, many Democratic elites struggled to comprehend how Trump’s base voters supported policies counter to their personal or financial well-being. Many base voters were apt to suffer from regressive tax policies, repealing the Affordable Care Act, and trade wars that risked harming farming and manufacturing communities. The difficulty involves failing to appreciate this second dimension of our politics.


The identity/culture and economics/policy dimensions are not always, or necessarily, in tension, but they can be. And over the past few decades in the US and in Europe, tensions across these dimensions have intensified. This was especially true over the past six years, as seen by the ascendence of Donald Trump in the US and Brexit in England. Many left elites castigated those on the right as ill-informed or worse for supporting a candidate, in the US, or a referendum, in England, that risked harming them financially.


There is an irony in this. A large cohort of left elites benefitted from the very policies that risked harming Trump’s base. This too is Newton’s law. And yet, those elites justified their commitments based on a set of larger moral causes: seeking to benefit historically marginalized groups, eradicating climate change, promoting social justice. My point is not to denigrate any of these commitments. I personally embrace them. Rather my point is that it is ironic to defend a counter-to-personal-interest elevation of political identity as a basis for calling out the other side as ill-informed based on that other side's elevation of political identity over personal interest. On each side the culture/identity dimension overtakes the economics/policy dimension.


There’s no easy solution to the impasse we find ourselves in. The actual, hard solution, I believe, involves finding ways to make identity less locked in, more fluid. We all would do well to appreciate that our sense of identity might be less within our control than we think. Epistemic humility might be the most powerful antidote to our existential crisis. Educated elites rarely come into being on their own. We are all the product of upbringing, culture, education, religion, and so much more. Same for those who form any populist base. Our politics forces binaries, but our identities are more nuanced and complex. We all do well to appreciate that.


As a student of economics, I also appreciate the critical role of institutions. The way we behave, even how we think, is more a product of institutions than most people realize. What we regard as natural or inevitable is often shaped by institutional dynamics beyond our control, sometimes beyond our conscious awareness. Political structures can pull us closer together or rip us apart. They can entrench our identities or render them more fluid.


I’ll be thinking a lot more about how we might transform our institutions to allow meaningful third parties in the US. Third parties can change the spectrum of our politics, upending the ever-growing divide that threatens to tear our nation ever further apart. Along with the world tour, I hope to equip readers with the tools that will let them synthesize differing systems and understand how we might adapt our own. Perhaps it won’t surprise you that these tools include game theory and social choice.


No system is perfect. Ours has lasted near a quarter millennium. Our Constitution replaced an earlier broken system, the Articles of Confederation. Today, our constitutional system is badly broken. We often hear about the wisdom of the framers. I’ve spent time criticizing them in this class. But in one respect I agree. It is time to heed their wisdom in recognizing when the time has come for change.


Thank you.


[As always, special thanks to my terrific colleague, Bob Condlin, for his characteristically insightful comments on an earlier draft. Special thanks also to Jennifer Elisa Chapman, J.D., Ryan H. Easley Research Fellow

Thurgood Marshall Law Library, for the wonderful graphics in the final slide.


Credits:


The NYT published the North Carolina Map in this article: https://www.nytimes.com/2016/02/18/opinion/racial-gerrymandering-in-north-carolina.html.


The PEW Website allows allows reproduction with credit as appears on the slide.].




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