Polarization and Persuasion

Yesterday the Washington Post noted that

A pair of tepid jobs reports, landmark Supreme Court decisions on health-care and immigration laws, and an unprecedented barrage of negative ads have shaped the opening months of the fall presidential campaign. The impact on the horse race: virtually none. According to a new Washington Post-ABC News poll, President Obama and Republican challenger Mitt Romney remain in a deadlocked contest, tied at 47 percent among registered voters and basically where they stood in late May.

The polls aren’t moving much anymore. The upshot? Most people have already made up their minds.

At this point, 74 percent of all voters are “definitely” supporting Obama or Romney, and 12 percent say it is unlikely that they will switch from one to the other, making the race a settled issue for nearly nine in 10 voters. For both campaigns, such a high level of early commitment shifts the focus to turnout — and to which side can muster the most effective get-out-the-vote operation.

This is one of polarization’s most interesting side effects. Not only do we have growing cultural (and spatial!) distance between leftists and conservatives, not only do we have legislative gridlock—but we also have thinner public debates. The next few months will be a fight over that solitary voter out of ten who hasn’t yet made up his or her mind. This heightens the rhetorical stakes and incentivizes intensely targeted messaging.

In other words, this dynamic goes a long way towards undercutting productive debate. It goes a long way towards making democracy less robust and less worthwhile. 

I suspect that this is the primary factor driving public pessimism about our governing institutions. They don’t work because we don’t think it’s worth the effort to engage with others anymore. We’ve given up on the very possibility that persuasion can make a difference. If it’s clear that the Right has become more ideologically radical than the Left insofar as polarization’s content is concerned, I suspect that both political wings suffer from an approximately equal level of disdain for the other. Leftists and conservatives are equally dismissive of their opponents.

And while I don’t have a solution or a nice, neat hand-wring to tie this to a close, it recalls a passage from Bryan Garsten’s Saving Persuasion, an EXCELLENT piece of recent political theory scholarship [underlining added]:

Persuasion does not rest upon a commitment to any underlying agreement. Rhetorical appeals need not and, in fact, must not take the intention to think reasonably for granted. They frequently start from premises or attitudes shared only by members of the present audience. Often the rely on premises that are not even made explicit; these premises are supplied by the audience itself. In trying to bring an audience from the conventional wisdom to thoughts or intentions they might not otherwise have adopted, rhetoric intends to wield influence over them. In this sense rhetoric is a form of rule…

The way in which persuasion aims to rule, however, is distinctive. While the word “rhetoric” as used today often refers to one of the vices of democratic speech, the term changes its valence when defined as an effort to persuade. Persuasion in the strict sense identifies a way of influencing that is neither manipulating nor pandering. The speaker who manipulates his audience so as to bring them to a belief or action without their consent, as Kant thought orators moved men “like machines,” has not persuaded but coerced. In contrast, the speaker who merely finds out where his audience itches and then scratches there, as Plato thought pandering Athenian orators did, has not managed to change his listeners’ minds at all. To truly persuade people is to induce them to change their own beliefs and desires in light of what has been said. Though we speak of “being persuaded” in the passive voice, we recognize the difference between being persuaded and being indoctrinated or brainwashed; the difference lies in the active independence that is preserved when we are persuaded.

There’s a lot more (in academia, there is always a lot more) to his argument, but this is more than enough to set up the point I’m chasing. Persuasion is only really possible when we share some minimum amount of conviction with our opponents. Think about it: we cannot persuade those who already fully agree with us. Nor can we persuade those with whom we share nothing. Persuasion can only operate in an environment of partial agreement—and that happens to be the only environment in which it is helpful.

After all this prelude, I’m sorry to report that there’s no crisp way to measure just how much disagreement we can handle between interlocutors before discussion breaks down—but I’m fairly confident that American public debate has passed that point.

Update: This post on polarization from Grist’s David Roberts provides some useful quantitative background to my argument. 

Conor P. Williams has a lot more to say about this, but it’s going in the dissertation. If you got all the hit singles for free, you’d never buy the whole album, etc, etc. Williams writes and teaches in Washington, D.C. Find more on FacebookTwitter, and at http://www.conorpwilliams.com. His email address is punditconor@gmail.com

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68 thoughts on “Polarization and Persuasion

      • The Rape of Nanking would have been repeated in Christchurch if the Empire of Japan had not been stopped.

        With all due respect, JamesK. That’s a fact that must be acknowledged. A terrible fact.

        And so, this comment thread is veering toward disrespect to those who secure and secured our freedom, fought, lived, many died.

        So we can sit here on our chairs and type into keyboards and do this LoOG thing.

        I think it’s valid that we discuss the senseless carnage that much of European history brought, marching and killing under flags that would change alliances next time around. Is France our ally or our enemy? The Anglosphere asks, what time is it?

        With all due respect, JamesK, New Zealand itself is less worth fighting over than tuna fishing in the Atlantic, whales in the Pacific, China’s claim to the Spratly Islands, or lunar mining rights. Anybody who owns a globe can see NZ for themselves.

        I dig the Kiwis, Black Caps, especially Richard Hadlee, whose hand I shook once.

        But y’all are freeriding on yr geographical isolation and on the Western world bigtime. That you have repaid that debt in various times in your history is to your credit; when you have turned inward, not so much—but I figure you’re building your strength. Civilization needs you.

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        • Japan was pretty much dead on its feet by the time pearl harbour happened. AFAIK Japan did not have any designs on Australia and NewZealand. Japan was after a greater Asia led under is own banner. NewZealand is not exactly in Asia. Pearl Harbour was never an attempt to project power across the pacific. It was aimed at disabling american capabilitis so that it would not interfere in the war. Of course that screwed up monuentally.

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        • You seem to have read far more into my post than I meant to put there Tom. I’m not a categorical pacifist, I believe that there are indeed legitimate cases for violence and self defence (or the defence of others) is right at the top of that list.

          None of that changes the fact that war is a great evil (if occasionally a necessary one) and the unifying effects of war aren’t really much of an offsetting benefit.

          I’m not sure that you and I actually disagree on this.

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          • JamesK, the Empire of Japan would have raped NZ as it did Nanking and turned your women into “comfort women” as they did to the women of Korea, I do believe, oh yes, surely I do.

            And I think any worldview that doesn’t acknowledge that reality is insufficient.

            Perhaps that was a one-off. I’ll acknowledge that.

            None of that changes the fact that war is a great evil…

            I’ll stipulate “tragedy,” and in the case of the First World War, hubris and stupidity on a scale never again duplicated.

            WWII, neither a tragedy nor a mere stupidity. A necessary settling of things, as was the American Civil War.

            In either case, there was no other way out. Both sides were all in.

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    • IMO, a better example of the sort of polarization Mr. Williams discusses in the OP would be Nancy Pelosi’s response to the notion that constitutional boundaries might have been exceeded. “Are you kidding?” is a substantially different reaction to that sort of a challenge than would have been, “No, this is within Congress’ commerce power,” or even, “No, I think you’re incorrect.”

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  1. If 47% support Obama, and 47% support Romney, that leaves 6% undecided. If 74% are definitely voting for one or the other, and 12% say it’s unlikely they’ll switch, then that leaves 14% of the 94% of decided voters, or just over 13% of the total, as even persuadable. +/- 3.5% MOE.

    That’s about one-fifth of the electorate that either can be persuaded or will eventually have to choose. And that’s really pretty much been the case since 1968, hasn’t it?

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  2. Nice OP Connor, but you realize intuitively I believe that the current polarization that the US is experiencing is itself a direct result of the brainwashing that has been occurring for decades. Interestingly, as media outlets have become more numerous and scattered (vs the “big three” television stations of yore), information consumers have gravitated towards the media that for lack of a better term, “pleases” them.

    I was at a party on the 4th and a group of us were having an interesting discussion about developing energy resources. A woman walked up to the man talking and said, “What stations do you listen to most?” He answered, “I like Fox News”. She said, “We have nothing to talk about” and stormed off.

    I suspect we could duplicate that scenario a million times in America today.

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  3. Persuasion of ideologues is different than persuasion of casual voters. Ideologues, in an ideal world, should be slow to belief in the first place, and while they hopefully remain open-minded about those beliefs, they change only very slowly as time and contrary evidence compel one’s bedrock of presuppositions to more properly comport with observed reality and other foundational ideas. Drops on a rock. I’d like to think this blog is frequented by people who tend toward that ideal at higher rates than does the general public.

    As for the rest of us, the casual voters, the hoi polloi, the proletariat, the whathaveyou, they aren’t ideological, at least, not in any way meaningfully resembling the ideal sense. They either (1) don’t understand how political ideologies connect with the larger world of ideas, or (2) simply don’t care about the world of ideas. To the first group, candidates will try desperately to explain their ideas, and (hopefully) prove that they comport with the ideas the casual voters (hopefully) have. To the latter group, candidates can do nothing else but offer goodies and appeal to subjective and superficial criteria like style and appearance, etc. That charade makes us ideologues sigh, but it’s not the candidates’ fault. Hate the game, not the player.

    To more directly respond to the OP, we shouldn’t be depressed about high rates of ideologues and low rates of casual voters. Nor should we expect candidates to be so deluded to think they can persuade ideologues – something that, if it can ever be done, takes several years or decades, or at any rate, certainly more than an election cycle. We shouldn’t be surprised that campaign discourse is not more exciting to us political philosophers.

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  4. Nice OP Connor. A few things though:

    1. What you might want to ask yourself is whether it is really that difficult to persuade the other side. (it seems that it really is and is not merely a public perception). Because if it is so, then your public institutions really wouldn’t be worthwhile.

    2. I’m actually working on a paper where I argue that in any democratic polity, in order for people to continue seeing public institutions as worthwhile, they have to collectively ignore certain implications of widespread disagreement. Any democratic polity where the populace takes the evidence of others’ disagreement into account is one in which the populace does not support democratic institutions. Epistemic rationality therefore undermines democracy.

    3. To be clear, persuasion is still distinct from reasoning. The kind of considerations that we actually do find persuasive are not necessarily the considerations we ought to find persuasive. For example, lots of people find appeals to counterintuitive implications of a principle to be persuasive aguments against said principle. But there really is no reason to think that such intuitions are more likely to be true than not.

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  5. Hogwash … the current obsession with the notion that our politics is broken in a new and serious way is mistaken. A common argument for this claim is to point out the many vehement political disagreements as if they prove that the political class cannot govern. Or to cite statistics about how Senate procedure has changed in the past 20yrs. There are various cognitive biases at work here (eg confirmation bias), but I am most annoyed by the Backfire Effect – the last 4yrs are chock-full of evidence that our politics is working amazingly well, which is cited as evidence of the alleged dysfunction.

    First, following the financial crisis, the political debate in Washington changed very fast. The Republican Party was forced, against the will of many powerful members of the political class, to change its emphasis to accommodate a populist, fiscal conservative movement. Big govt conservatives were out, not because our representative democracy is broken, but because it works quite well. After 20yrs of ignoring the need for entitlement reform, it is now a central issue in the election. That politics working, not a profound new schism. That political compromise takes years is just reality; there is nothing new or dysfunctional about that reality.

    Second, Obama passed landmark legislation, including a 1tr stimulus and the health care reform that was politically impossible for a generation. Is our politics more broken in an era when Washington produced sweeping legislation like PPACA than when Republicans ran HillaryCare out of town? Nope. The 2010 lame duck Congress did some terribly foolish bipartisan things, but that is taken as a sign of how desperate the situation has become that significant legislation came out of the lame duck. Bush passed plenty of legislation, including Medicare Part D and No Child Left Behind, which were bipartisan. And he took us into two wars with widespread bipartisan support. And when the population decided, belatedly, that this was a mistake, the political class took a less hawkish posture (if not everyone, nor to the degree most would like – money matters after all!).

    Last, the idea that because we are now starting to have the big debates on Medicare and Social Security which have been postponed for so long, the idea that this is evidence that NOW our politics is broken … HOGWASH! This is the very evidence of our politics working. The big issues are being worked on finally. And there is so much that is agreed – ideas like raising the retirement age, ending spending in the tax code, means testing entitlement programs … these are ideas with broad consensus backing. The godawful media focuses on the points of disagreement and endlessly repeats the assertion that our politics is broken because this is their best idea of how to entertain us. They really aren’t very good at their jobs, and they have the declining wealth, power, and status to prove it.

    As Stew-beef says, “I say good-day sir!”

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    • Dude, after that, you’re bailing? If the OP got your blood pressure up, stick around! We’ve got a whole spectrum of perspectives here, and there’s a home for you, if you want it, people who are going to read what you say carefully and respond to your ideas. Come for the policy, get sucked in by the culture, stay for the cocktails.

      As for what you say, the points of disagreement are indeed shinier than the points of disagreement and consequently an obstacle to the reforms that can be achieved with consensus. If Obamacare came wrapped in a bow decorated with elephants, I rather strongly suspect it would produce a result of acceptance with reverse polarity from what we see. Would it produce different results at SCOTUS? That’s the most interesting question to me. Is the partisan labelling attached to legislation more important than its content, and if so how much do we resemble post-Sullan Rome? That’s something I’m hoping to hear from the classicists about.

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      • On the SCOTUS question, my view is that it most certainly would not reverse the vote on the court if it had been a GOP-led bill. There are doubtless some froward aspects to the partisan policy debate (eg the faux outrage at the anti-liberty aspect of the individual mandate), but I wouldn’t take it so far as to say that the parties care only about the wrapping paper, as you suggest. And the SCOTUS definitely does not rule based on the party affiliation of a policy. If anywhere our society has substantive and honest ideological debate, it is among our divided supremes. Much scorn has been heaped on Roberts-as-turncoat of late. Personally, being of a Roberts-esque jurisprudence myself, I would coyly admit that the grounds on which he ruled were exactly the way I saw the issue: not commerce, but indistinguishable from a tax policy. And I’d suggest that Roberts would have been more open to a full return to a Lochner-era defense of economic rights, striking down the law as trampling on our economic freedom. My speculation is that he saw the option of joining other conservatives in ignoring the how-is-it-not-a-tax line of reasoning in order to prevent a federal power grab in health care as unprincipled.

        As for Rome, I am wholly unqualified. I am however familiar with the Mike Judge movie Idiocracy, in which a fictional future bodybuilder and moron is POTUS, who in response to national crisis addresses the Congress by saying “I know everyone’s sh*t is emotional right now, but I’ve got a 3 point plan to fix everything!” Our system is as yet very far from impotent. We can renew our society. And while the “our politics is broken” chant is mistaken, I don’t mean to imply that the culture is strong or that the polity is thriving. We are not thriving. We are partying. There is a difference. That Americans think the party of American preeminence is somehow a raw deal (the whole income inequality kerfuffle) worries me greatly. I would channel Reagan here and state that I do not believe in an inexorable decline, but neither do I subscribe to the myth of American exceptionalism, the fanciful lie that America is destined for greatness independent of our individual choices.

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    • “The big issues are being worked on finally. And there is so much that is agreed – ideas like raising the retirement age, ending spending in the tax code, means testing entitlement programs … these are ideas with broad consensus backing.”

      Among many sets of the intellectual class, yes. But among the voting public and the politicians who rely on their votes every 2-6 years? Eh. I see very very few major politicians openly campaigning for ending popular tax breaks, raising the Medicare age, or, god forbid, trying to pull off a serious means-testing of the big entitlements. I agree with you 100% that the “we’ve never been more polarized” meme is way overplayed, but I think you might go a tad overboard on the optimism for serious long-term deficit reforms. Remember, Romney is still gaining points by calling out Obamacare for cutting Medicare and Obama got rickrolled by his party for even suggesting the aforementioned reforms in a deal with John Boehner.

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      • I agree with you. I am not optimistic that fiscal reform will precede an economic crisis. Near term we can get something which politicians claim is “serious long-term deficit reforms” and especially if Romney wins in November. But the balance of the odds is that it will take higher interest rates to raise the real cost of our profligacy in order to catalyze change. Look at interest rates under Clinton and it makes sense that Rubin and Summers prioritized the deficit. When the US can borrow 10y money at 1.5%, we’re unlikely to get serious about cutting the deficit. That so many intellectuals are so smitten with it is kind of odd and heartening to me.

        As for campaigns and rhetoric, there are some positive data points worth adding to your two negative ones. Both parties accuse the other party of ignoring Simpson-Bowles (I count that as positive). The Gang of Six actually had a plan that could pass the Senate. And more relevant, politicians like Chris Christie and the WI Gov have had success with relative straight-talk on fiscal cuts. The role of Ron Paul in the Republican primary in 2012 relative to 2008 was a visible sign of how much the party moved towards a traditional conservative fiscal policy. Do those positives make me net optimistic about long-term deficit reform? No. But it’s a big problem and I’d argue it is one that emanates from deep flaws in our political system and society, as opposed to a typical problem that we expect Congress to address well.

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  6. Ever and anon, some weary soul’s eyes turn heavenward, emits a heavy sigh and says something of this sort. Polarization, gridlock, can’t this wretched republic do the nation’s business? People are being nasty to each other down there in Gomorrah-upon-the-Potomac!

    Of course public debates are thinner. Attention spans are shrinking. Nobody’s fighting for the single voter: they never did. Your image, of the Lincoln-Douglas debates – have you actually read them? You only think you have. They were all edited after the fact, by the newspapers. Even Lincoln edited them. We don’t know what was really said. Nobody does. Lincoln had a habit of touching up his speeches for subsequent printing.

    But two of Lincoln’s statements stand out from those debates:

    Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who molds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.

    ….

    That is the real issue! An issue that will continue in this country when these poor tongues of Douglas and myself shall be silent. These are the two principles that are made the eternal struggle between right and wrong. They are the two principles that have stood face to face, one of them asserting the divine right of kings, the same principle that says you work, you toil, you earn bread, and I will eat it. It is the same old serpent, whether it come from the mouth of a king who seeks to bestride the people of his nation, and to live upon the fat of his neighbor, or whether it comes from one race of men as an apology for the enslaving of another race of men.

    Public debate is never productive. Democracy will do just fine as long as something like Roberts’ Rules are applied and the factions within the audiences don’t start shooting at each other.

    Persuasion is an easy craft to master. It’s not taught in most universities, but it is in drill instructor school. All leadership is by example. There is no other kind. Men are not convinced by words but by deeds. They will follow those who have three qualities: the ability to clearly explicate objectives, the mandate to give orders and the confidence of those who are given those orders to achieve those objectives.

    There is no other sort of persuasion. The first quality, the explication of objectives, this is generally what we call rhetoric. Agreement and consensus can only arise when someone takes charge and calls for opinions, takes advice, gets tactical buy-in from the unit.

    Idealism is a trap. Idealism gets people killed. Idealism leads to Charges of the Light Brigade. Working intelligence leads to clarity of objectives which leads to clarity of orders and thus to success.

    All talk of brainwashing is nonsense. It cannot be done. A man cannot be convinced against his will. If Congress endlessly wrangles, it’s all a sideshow to keep the rubes looking at the pretty girl and not at the magician.

    Of course discussion’s broken down precisely because wrangling isn’t discussion. Congress won’t take charge of itself. We can handle any amount of verbal disagreement as long as that’s where it stays, in the generation of hot air.

    Fear not, folks. Polarization won’t kill us as a country. If things are bad, and they are, it’s because the real problems aren’t coming up for debate. There’s agreement all right, agreement never to open the Pandora’s Box of real problems we face. It’s the agreement of cowards. That’s the shit that’s gonna kill us eventually, not the current non-issues in the press these days.

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  7. I suspect that this is the primary factor driving public pessimism about our governing institutions.

    I think the primary factor is that one of the two parties deliberately stokes that pessimism, as longtime Republican Congressional staffer Mike Lofgren pointed out:

    Far from being a rarity, virtually every bill, every nominee for Senate confirmation and every routine procedural motion is now subject to a Republican filibuster. Under the circumstances, it is no wonder that Washington is gridlocked: legislating has now become war minus the shooting, something one could have observed 80 years ago in the Reichstag of the Weimar Republic. As Hannah Arendt observed, a disciplined minority of totalitarians can use the instruments of democratic government to undermine democracy itself. …

    A couple of years ago, a Republican committee staff director told me candidly (and proudly) what the method was to all this obstruction and disruption. Should Republicans succeed in obstructing the Senate from doing its job, it would further lower Congress’s generic favorability rating among the American people. By sabotaging the reputation of an institution of government, the party that is programmatically against government would come out the relative winner.

    A deeply cynical tactic, to be sure, but a psychologically insightful one that plays on the weaknesses both of the voting public and the news media. …

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  8. The more I’ve attempted to listen to right wing talk radio, the more your analysis rings true Conor, but I submit that there is a marked difference in terming.

    The argument from the left wing is that the right wing is misguided, lesser educated, and to some extent that much of the agenda is driven by people with racial animus. The right wing doesn’t help themselves much in this regard.

    The argument from the right wing is a marked contrast. “Liberalism is a mental disorder”, “these people hate America”, “commie traitors”, and so on. I’m reminded more and more each day of the days when Joe McCarthy was running the HUAC show trials.

    Last week for the 4th of July, I listened to some of these creeps proudly proclaim that the only “real patriots” have to be Conservative and as their proof, they offered up a litany of “proof” about how liberals supposedly hate America, hate freedom, want to enslave them through taxation, and on and on. My disgust is this: if “being conservative” by their view is what it takes to be a patriot, then I wouldn’t be surprised to see most liberals turn away from that brand of patriotism so tainted by bigotry and jingoism that it deserves in a trash can. It’s hard to be a “patriot” when the right wing is walking around embarrassing everything your country stands for all the while claiming to be the “real Americans.”

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    • Don’t take this as disagreement, since your characterization is about the political argument as expressed in rhetoric. Both sides attempt to discredit the other with hyperbole.

      I’ve thought for a while that the critical misunderstanding between the two major political persuasions comes down to this: left-liberals think that conservatives have the wrong value, want the wrong kind of society while conservatives think that left-liberal policies will utterly fail to achieve the society that left-liberals actual want. I know that’s a simplification and that plenty of social conservatives attack the values of left-liberals, but if you think in terms of the intellectual position of both sides, I think my account is accurate.

      So what? Well, if true, then it shows a path to political compromise. First, left-liberals need to realize that most conservatives would rank-order societies roughly the same as left-liberals. Maybe not the extremes, and they certainly want to emphasize different aspects, but brass-tacks they both want broad prosperity. Left-liberals need to be convinced of this so they listen up. Second, there needs to be a debate about why left-liberals think their policies will work while conservatives think they are a disaster (and even according to pure left-liberal preferences). At that point, the good people of both persuasions can pick some policies and move ahead thoughtfully.

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      • Look, if we’re to take a dispassionate view of how Liberals and Conservatives behave, and by that I mean, what they actually do, the self-described Conservatives aren’t acting very Conservative by anyone’s definition, least of all the Burkean Conservatives.

        Truth is, the American Conservatives these days are classical liberals.

        The Liberals, well, hell, there aren’t any left worth a bucket of warm piss any more. Ted Kennedy was probably the last of them.

        The American Liberal is really a centrist. If there are any Conservative axioms in either faction’s vocabulary, they’re mostly found in these centrists.

        You’re absolutely right, when you observe they’d rank-order societies similarly. That’s because not much actually separates them. They’re whores, all of them, whores to political donors and the spoils system. They respond to those who serve their causes. That’s why we’ve seen even ol’ Bill Clinton merrily signing all sorts of deregulatory legislation and suchlike. Look at Obama with Geithner on his team, this guy isn’t a Liberal. At best, he’s a scheming centrist trying to pose as a Liberal.

        But Romney really takes the cake. He’s actually a progressive. Oh, he’s trying to back away from all the progressive stuff he’s done, but nobody’s fooled. In the old days, he’d have been as liberal as his Dad. Interesting guy, George Romney. As head of HUD, George Romney tried to do right by the poor, especially about the rampant discrimination going on but Nixon was a bigot and made sure Romney never made any progress.

        Anyone who moves to the centre in a campaign has moved into No Man’s Land and will be shot at by both sides. No intelligent politician this close to a presidential election wants to go there.

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        • The politicians may be whores, but I’m more concerned about how the intellectuals in both camps act.

          We really cannot expect much good from Republicans who supported the individual mandate when they opposed HillaryCare and now claim that the individual mandate is the end of federalism and the American experiment. Democratic politicians seem more innocent and dumber generally to me, like “can’t we have the staff write a law to fix these societal problems.” Even the smart ones, like Barney Frank, are hopeless as legislators – during the Dodd-Frank debates, Frank told a group of asset management execs that he wasn’t interested in good ideas, so save their breath basically. He claimed, probably lying even then, that all that mattered to him was what Democrats needed to do to satisfy voters; it was pure politics.

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      • What do we mean by work?

        I don’t think that my liberal policies will result in a perfect utopia where no one misbehaves whether intentionally or negligently. Human nature is not perfect and we all have our contradictions and faults. However, I think my policies will provide redress when injury occurs.

        This is sort of a philosophical exercise for me as a lawyer. I can’t go into full details because of confidentiality rules and ethics but I see a lot of e-mails by very smart people who should know better, they are basically breaking the law and do not care. I’ve seen it in product liability cases, antitrust cases involving the few clear violations like Horizontal Price Fixing and Territorial Divisions, Employment Discrimination cases, etc.

        The perfect would be a society where these things do not happen but this perfect world does not exist. The good is having laws that say employment discrimination is illegal and provides a remedy for when it happens and enforces said remedies through courts of law. Same with antitrust.

        Conservatives seen to think this is a zero-sum game. You have 100 percent success or you have nothing. The world does not work that way. The Civil Rights Act and Voting Rights Act did not bring perfect racial harmony but they have corrected a lot of injustices and prevented others. This is good enough for me to validate their passing and continued existence. We can work more on the remaining injustices.

        There is allegedly someone on the web called the Cowboy Libertarian. He allegedly had a post (I only saw this via hearsay) that went along the line of “Do you remember a time when all that was needed to seal a deal was a handshake and no one used a lawyer?” Call me biased but I don’t think this time ever existed, people have been using lawyers and suing each other for hundreds if not thousands of years. A someone born in 1980, I notice this a lot from conservatives who are Boomerish age or older, they seem to confuse Leave it to Beaver with reality.

        I don’t think the past is all bad. There was a lot of excellent and amazing art produced in the past and excellent people but I would not want to live in the 1960s even though I happen to think the French New Wave is the height of cinema and I’m tired of the megablockbusters filled with spectacle and no Aristotle today. The past was still decidely more racist, more sexist, more homophobic, more anti-Semitic, etc.

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        • When I say that left-liberal policies won’t “work,” I mean that the left-liberal policy programme, esp attempts at redistribution via the political system, will not achieve their own goals. The society that we will get will not be one that left-liberal like or want. One way to see the intuition for this is to note that the political class (and the majority they represent) is probably not likely to be looking out for the poor. They are v likely to look out for themselves and their donors.

          On social justice issues, like Civil Rights, legislatures are NOT leaders in catalyzing change. The Civil Rights Act followed and did not precede progress on racial discrimination. Did it help codify and cement that progress? Of course. But we ought not to think that LBJ was some visionary who drug racist Americans forward into racial unity. Many of the safety net programs, eg unemployment and disability payments, have severely hurt the cultural core of the lower and lower middle class (see Charles Murray’s Coming Apart).

          Now you focus on the courts. I actually think the courts are the best place for our rights to be protected. The Constitution really does curtail the ability of political majorities to trample on folks. And even most libertarians want the govt to provide for the rule of law, enforce contracts, administer bankruptcies, etc. My challenge to your call for a well-litigated society is that the courts are a terribly, prohibitively expensive way to achieve good outcomes. I never fully appreciated the saying “possession is 9/10ths of the law” until I witnessed someone try to enforce an employment contract in New York. Wow, an eye opener. The contract was brazenly violated, leading to litigation, which called for arbitration under the contract, which was successfully delayed by the breaching party, which quickly extended past the time when the contract’s provisions became inapplicable, and there were no provable damages so the breach went completely unpunished. And the breach started when the contract-breaker’s lawyer explained how hard it is to enforce such a contract even when it is crystal clear.

          And, last, the courts are not even the proper remedy in theory. Take your example of employment discrimination. So what. Let the employers discriminate. Get a job somewhere else. Let my wife open a restaurant that only employs Canadian-born women and only serves red-heads (I’ll stop her since we’d def go out of business!). Let my buddy open a restaurant that only serves gays and employs only handicapped people. Let Lehman Brothers hire only white men (since they sort of did anyway). So what?!? Are we better off with laws and attempts to remedy this conduct via courts? I believe we are not.

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          • I would agree with you except that you chose a really unfortunate example. A lot of discrimination in the civil rights era was a product of state action. On top of that, While racist attitudes were actually decreasing since the civil war, racist government policies actually increased racial resentment. With regards to raism, a good bit of policy actually shaped attitudes.

            The market would not necessarily have been sufficient to reduce discrimination in commercial activity. If you are a small enough minority, businesses can discriminate against you without suffering to much. Especially in racist communities, a non-racist policy would have cost you business because racists would not have wanted to patronise establishments which allowed “those other kinds of people” in. They would have been willing to take a hit in product and service quality in exchange for an “improvement in the atmosphere” of the establishment.

            This is similar to the problems gay couples have in finding wedding venues and planners in more conservative societies. Some people just won’t hold their weddings in venues where gay people also hold their weddings.

            There is a reason why shunning works in various communities. Their sense of solidarity (racially based or otherwise) is strong enough to overcome the small personal cost that they incur by excluding some people from patronising their establishment or working for them.

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            • The market would not necessarily have been sufficient to reduce discrimination in commercial activity.

              Perhaps not, but it’s often overlooked that the Montgomery bus boycott resulted in a change in business practices, as did the boycott of downtown businesses. That’s a pretty fair example of market action reducing discrimination.

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              • Fair enough. Boycotts work quite well if the minority in question were a sizeable chink of the existing customer base. I was thinking of already successful businesses with whites only policies. While they could in theory increase thir profits by being less exclusionary, if sufficient numbers of their existing white patrons would boycott them if they stopped discriminating, it would make business sense to discriminate. And this does not say anything about what happens when people’s bigotry over-rides their business sense.

                Cartel-like behaviour can achieve moderate success in tight, closely knit communities. (Or else Elinor Ostrom’s fisherman cartel wouldn’t work)

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            • I think we mostly agree. The example is not unfortunate – the point you make is even stronger than the one I made. I was claiming that the legislature was lagging the culture in racial reconciliation. You point out that the legislature was actively retarding racial progress for decades. That’s true. The point is that legislatures are not the protector of minorities, even though we like to look back at landmark legislation and credit legislatures for the part they played. We tend to give them too much credit for the long run success of the society in such areas, and not enough blame for their role in perpetuating problems. Basically Americans deserve credit for improved race relations and a more just society, and by the 60s such views were widely enough held that the rest of the country drug a recalcitrant South unwillingly into the future.

              I would probably disagree with you about the efficacy of markets to fix such problems, but this is a matter of degree and similar to what James Hanley already wrote.

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              • Basically Americans deserve credit for improved race relations and a more just society, and by the 60s such views were widely enough held that the rest of the country drug a recalcitrant South unwillingly into the future

                But that’s the thing: the south was rather recalcitrant on this issue and it took the rest of the country which was more progressive to force the south to change.

                The example is bad because, if you wanted to show how legislatures are often behind the curve and how the law is a rather blunt instrument to work social change, you could have used more recent examples. Individual businesses have extended benefits to gay partners before the federal government. I’m sure there is a recent discrimination case or two where people had genuine and credible alternatives. (The one with the mechanic who required the customers to quote a particular verse from the bible comes to mind. But I forget whether the case against him succeeded or not)

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            • One of my favorite Con Law quotes comes from Chief Justice Warren Burger (or his clerks). The quote is “The Constitution can not change social prejudice but neither can it accept it.”

              The case involved a mother who lost custody of her child after moving in with her black boyfriend in late 1970s or early 1980s.

              This is largely my view. I don’t think it is possible to create laws that say “Don’t be racist”, “Don’t be anti-Semitic”, “Don’t be homophobic”. What is possible is creating laws that do not allow bigots and racists to act on their prejudiced tendicies and these laws are required by the 14th Amendment in my opinion and based on my observations, they seem to work more often than not. There will probably never be a world that is bigot or prejudice free sadly but the we do seem to be rapidbly decreasing it. The Gay Rights movement made legislative gains in a much shorter time period than the civil rights movement. They still have far to go.

              I have a very expansive view of free speech and do believe that people have the right to express their views no matter how horrible. I basically like the idea of the First Amendment working as a “Please feel free to shoot yourself in the foot” act. I disagree with my European and Canadian friends on hate speech clauses enough that they do look at me as a weirdo American*

              As a Jewish-American, I can tell you that I grew up in a much less anti-Semitic United States than my grandparents and possibly my parents. My grandfather got into Columbia because his last name began with B and this saved him from the quota system. I did not have to worry that my last name ever prevented me from getting in anywhere. Nor have I ever seen a sign on a public pool or other facility that said something like “No Blacks. No Jews” and these signs were not too uncommon as little as 50-60 years ago.

              The South was bad on civil rights. In my opinion, they are still very bad and are the creators of my view that State’s Rights is the last refuge of the scoundrel. Some places in the South choose to close down their public schools instead of desegregating. I don’t see how a democratic society can function and allow such recalitrance. As far as I can tell, the South will probably need dragging on gay marriage as well.

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          • Are we better off with gun-fights in the street?

            I don’t really care what is in LBJ’s heart or not though I am slogging through the 4th volume of the Caro biography. He was far from a saint but I don’t really care about sainthood. He did give us some damn good legislation.

            The road to justice is long, slow, painful, and possibly an impossible human endevour. That doesn’t mean we should not try. “Ever tried. Ever failed. No Matter. Try Again. Fail Again. Fail Better”-Samuel Beckett.

            Arbitration is good when done between parties with equal bargaining power. It is not good when done between parties with uneven bargaining power like the employee-employeer relationship or in the most recent Supreme Court case between A Telecommunications Corporation and a customer. It is generally the right-wing of the court that votes to expand the scope of binding arbitration.

            There are always going to be cases like you described. They happened before I was born and will sadly happen after I die most likely. There are also plenty of cases when justice is done right and injured parties to get redress for their wrongs whether for injury, domestic violence (an injunction), employment discrimination, a violation of property-rights (easements). Most cases are not easy. There are plenty of cases where someone could have a colorable claim for say age discrimination but the defendant-employer could also have a colorable reason for terminating the employment of the plaintiff. How do we decide the hard cases is a tricky issue of jurisprudence but it is one I think society is better and less violent for leaving to the courts?

            If you honestly believe what you said above, I have no idea about how to find a middle ground with you. You are not presenting a picture of anyworld that I want to live in and are being plain silly with your Canadian example.

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            • The silly is to point out how bad the anti-discrimination law is. It is arbitrary.

              On the arbitration point, perhaps it wasn’t clear, but it was an ex-employee who brazenly broke the contract and it was a multi-billion dollar NY hedge fund manager that couldn’t get the courts to help enforce the employment contract. It was an eye opener.

              You cannot take living in a society where Lehman Brothers could legally hire only men? It has to be more subtle and illegal for you to stomach it? I’m not saying that I LIKE IT when humans behave badly. I DON’T to be quite honest. But dishonesty and discrimination are like worms and bedbugs … they are more a part of the human population than we like to admit. I do not believe that the best response to an unjust world is quietism and resignation. And I do not believe that spontaneous markets will magically provide everything if we just abolish all govt. My point above is more about the hugely first-order impact of the cost of legislation and relying on the courts as a primary remedy. The truth is that our society can only succeed if nearly all of our interactions are voluntary. Imagine if 10% of households refused to pay taxes – it would be the end of the United States (and that is NOT hyperbole!).

              Do you think it’s more silly that I cannot open a business that only hires the handicapped or that I bother to bring up the example? You think there are people who are willing to fund the most idiotic charities and there aren’t people who want to start such a business?

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  9. “The argument from the left wing is that the right wing is misguided, lesser educated, and to some extent that much of the agenda is driven by people with racial animus. The right wing doesn’t help themselves much in this regard.”

    At least as concerns the “lesser educated” part, the left wing doesn’t help itself much in making the accusation, especially on those occasions when it, or certain of its members, equate “lesser educated” with “no college degree, and therefore stupid people.” How many or who among the left wing do this? I don’t know, other than personal anecdotes I could offer that don’t mean much because they’re, well, personal anecdotes. But one should make the “they’re lesser educated than we are” charge with care, lest it descend into rank ad hominemism and cut off from the fold potential allies.

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  10. “Leftists v. conservatives”

    I’m going to take beef with this. A liberal (by which I mean a New Deal-Great Society type, not classical) is not necessarily a leftist. I am not Trotsky or Lenin or Mao trying to overthrow a government. My political heroes are people like Hubert Humphrey, Paul Wellstone, Franklin Delano Roosevelt, Nye Bevan, Michael Foot, and Eugene Victor Debs. You can disagree with these people and some might be more left than others but they all worked under the rules of Democratic order and rule of law. They did not commit acts of terrorism nor did they claim elections in which they lost were invalid. Eugene Victor Debs very principally went to jail over his dissent on WWI.

    By using leftist, you call everyone to the left of center out as being a secret supporter of a Robspierre styled reign of terror while not similarly calling out the far right for their rhetorical excess. As someone else said above, there are large elements of the American Right-wing who simply seem to view support for any kind of center-left politics as being anti-American and we are still aliens. This is simply wrong.

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    • Eugene V. Debs was left as hell. Otherwise, I’ll sustain Mr. Deal’s objection: I try to distinguish leftists from liberals where possible.

      Liberals want to help the poor. Leftists want to cure poverty. But trying to slide Debs or Bevins or Clement Attlee—architects of the UK welfare state—in with Hubert Humphrey or even FDR is just the wolf-in-sheep’s-clothing tactic that makes left and liberal synonymous for practical purposes.

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    • I use leftist in the broad and general sense of “everyone left of center” because of the very clarification problems you indicated in your comment. “Liberal” belongs to a few different strains of politics (now and before), and not all members of the American Left are “progressives.” This is a post about the two big wings, not about the various elements within either.

      Is it really common usage that “leftist” only applies to Jacobins, terrorists, Marxists, et al? A cursory web search for the term suggests that most define it as I’m using it.

      I’ve written about some of this at length here: https://ordinary-times.com/blog/2012/04/25/the-rise-of-the-wonky-left/

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      • I read that post.

        While I think good policy is important, I am not fan of the Ygelias wonk school that much either. Though as others have pointed out, he is much more of a neo-liberal on economic issues. I disagree with his general assessment of tech-utopia, the end of retail, and growth growth growth. Also when it comes to antitrust law, he has no idea what he is talking about. FWIW, I am a new antitrust lawyer and am still learning but have at least studied and have some real world experience in the field.

        FWIW, I do have a problem that many liberals seem to shy away from moral arguments and rhetoric but I do not think Elizabeth Warren is one of them. She might be a wonk but she can get down a meet people and do retail politics. I think a lot of liberals have an adverse reaction to the kind of populism as done by Sarah Palin and company for valid and invalid reasons. But for counter examples: FDR, LBJ, The Kennedy Brothers, pre-2004 John Kerry, Paul Wellstone, Gary Ackerman, Mario Cuomo, and Al Franken are or were very good at talking about liberalism as moralism. Based on my friends, I think you will start seeing a reemergence of a non-wonk left.

        He has some good points but there are non-economic considerations that are equally important like how retail helps form a community and does not allow us to completely to become pod people.

        Who are most? I often hear leftist as an insult from the Talk Radio set and they generally seem to mean people who still secretly wish the Weather Underground was more successful.

        Maybe this is just me personally but to me a leftist is a Jacobin-type. I see politics as more of a circle than a line and there are lots of overlaps (especially in anti-democratic tendencies) among the farthest reaches of the left and the right. Perhaps I am thinking of the old debates between the Fabian socialists and the more radicals who wanted revolution. There are some reforms that I want that can be described as socialist but I would only achieve them through the democratic process and ballot box.

        All of this is going to come with varying degree of confirmation bias. In my mind, liberalism is not a utopian-based worldview but to many conservatives it is. Many conservatives seem to pride themselves on being realistic about human nature while liberals are children and idealists. Though utopianists exists on all sides. My most basic worldview is that utopianism is a myth. There is not one happy solution that will turn everything into rainbows. This does not make regulation bad though. Just because a law does not get 100 percent perfect results, does not make unnecessary.

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        • Then “leftism” becomes a convenient trashpile to consign everything that’s unworkable in “liberalism.” Sorry, such legerdemain is precisely why it all gets conflated into “left.” [This again has turned into control-the-language semantics.]

          Whatever you call Obamacare, I don’t want it. Left is liberal is progressive and by any other name would still smell.

          I like safety nets and nobody right of left here LoOG or out there in the real world wants to do away with them. If that’s “liberal”—and I try to use it that way—then we’re all liberals now. Let’s party.

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          • There have to be some libertarians and conservatives here who don’t like the safety net. I don’t like the govt-provided safety net that we have. For example, my brother gets disability payments due to sleep apnea. That’s just ridiculous to me. I’m half of a mind to send a check to the IRS for the same amount every year. But that would solve nothing and I’m not that eccentric.

            Isn’t the safety net creating some serious long-run decline in the culture? Isn’t it fundamentally un-American, in the sense that we have traditionally operated with a scanty safety net and robust work ethic?

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      • Here is a hopeful primer on how I see the difference between liberals and leftist:

        I live in the San Francisco-Bay Area. As everyone knows, San Francisco has a large population of homeless people and pandhandlers. There was just an article on the Chronicle webpage about the constant stench at the 16th Mission St Bart Station Plaza because many homeless people use it as a open-air restroom despite the public restroom booth right on the plaza.

        A few years ago, there was a proposition ballot for a law called sit-lie which would allow police to move along loiterers more easily and issue civil fines.

        I am very sympathetic to the plight of the homeless and believe in FDR’s economic bill of rights. However, I still voted for sit/lie because that sometimes the pandhandler problem gets to be too much. You can pass four or five pandhandlers in a block or two. I have many friends who said they don’t like going to certain areas of the city because of the likelihood of being harassed by panhandlers. Most other San Franciscans felt the same way.

        However a lot of people screamed bloody murder at sit/lie and how it is all fascism. To me, the people who screamed bloody murder at sit/lie are leftists and simply not interested in any pragmatic solution. I support the welfare state and human dignity but not the right to harass people on the street for money.

        I believe in ordered liberty and equality.

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