AN EXCEPTIONAL DECAY?

Are we Americans the beneficiaries of the healthiest form of democracy? I don't pretend to know the answer to that question, but a respected academic addressed that topic not so long ago and came to the conclusion that we are not; that is, according to her, the US's democracy is experiencing meaningful decay. She specifically calls attention to the less than ideal levels of certain vital virtues among us: courage, moderation, veracity, and social justice. In terms of each of these virtues or qualities, Shadia B. Drury¹ finds Americans, especially those who populate the upper classes, as seriously wanting.

I have written in this blog that I believe there are worrisome developments we have experienced as a nation, including some that negatively affect the quality of our democratic life. I have always hedged my bets by pointing out that the US is a nation that has a lot going for it and that such descriptions as decay or doomsday conditions are overstating the case. In Drury, we have someone who is putting things in a more dire state. For example, she flat-out accuses even the more laudatory politicians of being less than truthful in meaningful ways. For example, there was the case when President Obama, during his initial run for the White House, stated, “If you have a successful business, you haven't built it yourself.” When faced with criticism, he shied away from the comment instead of defending it as an obvious observation of the truth. When one considers all of our dependence on just the infrastructure that has been provided for us by not only our current fellow citizens – in the form of their tax dollars at work – but also as the result of generations of Americans who have added to our collective wealth, you cannot help being humbled by what little any one of us have added to the great scheme of things. Such an understanding makes clear how dependent we are on others. Yet many of us, Americans, have adopted to our collective perspective that somehow we are special and that we are so because we believe each can – and some have – been able to accomplish life ambitions singularly and independently. We have coined the term, American Exceptionalism, to describe this loaded notion.

The term gained currency initially through the work of the sociologist, Seymour Martin Lipset. He wrote:

[T]he nation's ideology can be described in five words: liberty, egalitarianism, individualism, populism, and laissez faire. The revolutionary ideology which became the American Creed is liberalism in its eighteenth- and nineteenth-century meanings, as distinct from conservative Toryism, statist communitarianism, mercantilism, and noblesse oblige dominant in monarchical, state-church-formed cultures.²

Some would criticize Lipset for placing these beliefs as central to the American ethos. While most of us would agree that the listed values or qualities Lipset identifies are supported by just about all Americans, they are also challenged by a set of values and qualities that promote more communal goals and aims. As a matter of fact, currently – as reflected by recent voting preferences – such adherence to laissez-faire policy, for example, has at least been questioned.

Our history since the 1930s bears out that we as a people have questioned our love for unrestricted business operations. We have in this nation brought pure capitalism under serious restraints, especially since the adoption of the New Deal, the War on Poverty, Medicare/Medicaid, and now, the Affordable Healthcare legislation. In all of these, the American public has had ample opportunity to eliminate them and with the exception of the War on Poverty effort, the others, when given time, have proven to be quite popular with the American public. Even in the case of the War on Poverty or the Great Society initiative, we still sustain meaningful elements of it such as Head Start, Volunteers in Service to America, and Job Corps. What has been proven to be the legacy of the term, American Exceptionalism, is its addition to the lexicon of conservative proponents. The use of the term has evolved to being a weapon of sorts. That is, its use suggests that policies that are less individualistic, more communal or that bring about more restrictions on the prerogatives of businesses are un-American. In short, this language reflects the lack of veracity that Drury points out.

My aim in this blog is not to promote anti laissez-faire policies, but to simply point out that the American consciousness cannot be summarily described as American Exceptionalism – at least not in the way Lipset defines it. Early in the history of this blog, I identified five different orientations Americans have shared when trying to define equality. Two of these orientations seem to me to be relevant to this topic of American Exceptionalism. The two are “equal opportunity, limited rewards” and “equal condition.” I have recently reedited my initial remarks and would like to share with you what I see these orientations to be.

• Equal Opportunity, Limited Rewards – General belief orientation which views persons who enjoy superior human assets (e. g., intelligence, physical dexterity, humor, etc.) due to their personal efforts are entitled to above normal considerations in society in the form of status, wealth, material possessions, etc. These advantages, though, are limited only to areas associated with their earned accomplishments or contributions to society. Any entitlements acquired as a result of employing these assets are time limited as a recipient must continue to demonstrate his or her worthiness. Said rewards, other than status, must be purchased and are not distributed to beneficiaries due to membership in any class or family. Monetary reward payoffs for an individual’s contribution or for his or her status must be within limits. That is, they should not unreasonably exceed the person's contribution to the welfare of the society or provide such a level of financial standing so as to secure for him or her an ongoing, established source of benefits.
• Equal Condition – General belief orientation which views persons who enjoy superior human assets (e. g., intelligence, physical dexterity, humor, etc.) due to their personal efforts are entitled to above normal considerations in society in the form of status, wealth, material possessions, etc. There are no limits to that compensation other than as a result of the vagaries of the economic or political system. In capitalist societies, that would be the market. Other than status, all entitlements are to be purchased and monetary advantages do not entitle a person to unequal advantages under the law. The orientation extends to prohibit any restrictions on monetary or other types of rewards as long as the rewards reflect labor compensations, dividends, rents, or profits. Advantages are purchased and are not the product of membership in a family or class. The labor value of any person is based on its market value.

These descriptions are based on an ideal notion of each view and do not necessarily reflect the realities surrounding their implementation. For example, under equal condition, believing that unlimited compensation will not lead to unequal treatment under the law is unrealistic. The more realistic view is to acknowledge that those who benefit by extremely high income will use their excessive financial assets to gain unequal levels of access to governmental policy makers.

Be that as it may, the point here is that the nation, as I and many commentators see it, is divided almost equally between those who harbor the one orientation and those who hold onto the other. If anything, the movement in public opinion seems to be shifting toward the equal opportunity/limited reward view. At the same time, many who share the equal condition view are becoming more ideological in their perspective. In large part, this is what is causing our current standoff in Washington. If we believe Drury, a shift toward equal condition will further our path toward decay. While at the same time, those who favor equal condition castigate their opponents as un-American and despicable (i.e., they are takers, not makers). Tighten your seat belts; this ride ain't over yet.

1Drury, S. B. (2013). The decay of American democracy, part 2. Free Inquiry, 33 (3), April/May.

2This quote can be found in Lipset, S. M. (1996). American exceptionalism: A double-edged sword. New York: W. W. Norton and Company. This particular citation, though, was copied from website: http://www.washingtonpost.com/wp-srv/style/longterm/books/chap1/americanexceptionalism.htm

CONFUSED

I confess; I'm confused. I know it's a reflection of my age, but I don't understand the whole hullabaloo over the Affordable Health Care website not working. I mean, if you want it, go and get it. You can do that over the phone – maybe with some delays – or you can go to a nearby center and sign up. What's the big deal?

Reflecting my age group, my wife and I avoid purchasing anything online. Here's why. Beyond the horror stories of identity theft, there's the hassle of navigating through all those “buttons” to click through endless pages of Internet stuff. Give me a person to talk to anytime. If I were in a position to sign up for one of these insurance programs, I would go wherever and whenever instead of getting into a computer nightmare. Is having to go somewhere an unreasonable obstacle? I know that when my wife and I signed up for Medicare, given our situation, we chose to go to two different places – instead of going online – to be sufficiently instructed about what we needed to know and do. No big deal. And, in terms of dealing with websites, I know of what I speak.

This past summer, my wife and I went on an extended car trip. We do that from time to time. We go to South Florida sometimes and we finally broke down and bought one of those toll booth gizmos that allows you to drive on expressways and turnpikes without having to pay a tollbooth attendant or chuck some change down the “coin catcher” – and in the process get to feel superior to all those who don't have one and are waiting in long lines. In Florida, the program is called SunPass – clever, huh? But for trips outside the Sunshine State, the thing isn't valid. Well, this past summer we went up to the Northeast. There they have a similar thing, but they call it E-ZPass. We have a lot of friends and family up there so we go there quite a bit. Despite that, we had not purchased an E-ZPass. We decided we would do so on this trip. In Florida, it's quite an easy process to get hooked up to their system. You go to a supermarket chain store and you purchase the contraption, go home, and make a phone call. You're signed up! But that's not how it works in Maryland – the first state it made sense for us to buy an E-ZPass. You start the same way; we stopped at a supermarket and purchased the little box. But then what we had to do differed in that we had to go online in order to complete the process. Well that night, after over an hour on the damn computer, I gave up. Among all the problems I encountered, there was the omission on a scroll option display of the exact model type of my car – I eventually chose the nearest option available. In disgust, I shut the computer and was determined to call in the morning. Of course, that option was silly because what I was given – via an automated system – was a list of options that didn't exactly fit our situation since we were just driving through the state. Anyway, I tried again on my computer and, maybe because I had a night's rest under my belt, I was able to get through the steps successfully, but not without any problems. I can hear you; these old guys can't do this stuff. Maybe, but we haven't departed the scene yet and whatever is out there shouldn't be beyond us.

Anyway, I digress. The point is, if you want health insurance, go and get it. We are told that with Obamacare all of us can now afford it – or nearly all of us. I beg you, go and get it. You will be helping all of us – by increasing the pool of healthy people – and you will be adding to your own peace of mind. None of us know how well our health will hold up in the future. Besides, I am tired of paying higher health costs because some of you show up at emergency rooms without the ability to pay. Those costs are shifted to the rest of us and it's simply not fair. So do your bit and sign up.

As for the website, why not just shut it down, get it fixed, extend the open enrollment period, and tell people to sign up over the phone or in person? Once the bugs are out of the computer option, then open it up. Of course, they could have just extended Medicare to everyone at the beginning when they were considering a universal health program and that would have been the optimal option. No: we had to try to placate Republicans and ape Romneycare which of course didn't work in satisfying them since they couldn't stand to win a major concession if it meant giving President Obama any credit.

DON'T MESS WITH THE GIPPER

Chris Matthews, the MSNBC political commentator, is currently the subject of a number of interviews as he is promoting his new book, Tip and the Gipper: When Politics Worked. The focus of the book is the relationship between President Ronald Reagan and Speaker of the House Tip O'Neill. The common knowledge of how these two leaders interacted is that even though they seemed to agree on little, they were able to work out compromises, and during their years as president and speaker quite a bit was accomplished. One of the points Mr. Matthews makes about Reagan is that Reagan was feared and that fear helped him get things done, especially in foreign relations, particularly in dealing with the Soviet Union. The event that conveyed the idea that Reagan was not to be taken advantage of was his breakup of the PATCO¹ strike in 1981. According to Matthews, this policy of Reagan's sent a message around the world in that the President not only ended the strike, but also prohibited the air controllers who refused to return to work from ever working for the federal government again. I do know that all of organized labor has suffered greatly as a result of that strike because the legitimacy of labor's aims and tactics has been seriously questioned by the American public.

What exactly is at stake in situations when a leader or some other person of power is trying to engender fear? In political terms, fear is an emotional response to a threatened use of coercive power. Coercive power occurs when one party gets another party to do something it would not ordinarily do in order to avoid a punishment – that is, being deprived of something the second party wants or needs. Usually the emotion of fear is felt as the affected party – the party whose behavior is being altered – anticipates or realizes the potential of the impending punishment. The level of fear corresponds to the perceived costs inflicted by the punishment. A “slap on the wrist” does not generate much fear, but a heavy fine or a long prison sentence or a savage beating would probably cause a great deal of fear. Punishments come in many forms. There can be physical pain, financial ruin, lost love, or frustrated ambitions – just to name a few. Sometimes the onslaught of punishment might reduce fear and cause a person to feel other emotions such as apathy or the desire for revenge. It might incite angered responses or despondency or for some, fear might increase.

It doesn't take much in life to figure out that fear is a potent emotion and a powerful weapon for those who can engender it. Matthews cites the political thinker and writer, Nicole Machiavelli, who wrote in the Prince: princes should strive to be loved and feared, but if they have to choose, they should choose being feared over being loved. Reagan was feared and loved. Whether he was feared more than loved is subject to historical interpretation, but when the chips were down, I agree that he was more feared than loved. But can a leader be feared too much? Is it one of those weapons that can be overused? Does its overuse cause negative consequences that might, in the long term, be problematic for the leader who is guilty of such an excess?

Alan Greenspan, in an interview on CNBC, stated that in terms of financial matters, fear is a much stronger emotion than greed or optimism. The former Federal Reserve chairman said you can see this in the course of a financial “bubble.” A bubble, which reflects either optimism or greed – perhaps both – grows slowly over time. The growth period can last a year or more. But once the bubble bursts – for whatever reason – the decline in asset values falls precipitously and of course this reflects fear. So, according to Greenspan, you can measure the relative strengths of these emotions as they are expressed by the behavior of investors and he estimated that fear was at least four times stronger than greed or optimism. So, one can conclude, at least in relation to these other two emotions, fear is quite strong and quite memorable.

I didn't live during the Great Depression, but people my age were brought up by people who did. A common notion among us war babies and baby boomers as we reflect about our parents is that the effect of living through the Depression was long lasting and the one theme our parents would repeat when speaking of those times was the fear that they experienced during those years, the fear of not knowing what the future held. And we also now can compare their behavior patterns concerning money – their proclivity to count every penny – to our children and their behavior patterns. We see shows such as House Hunters on HGTV where young couples look for housing and demand every new feature not in the future, but right now. If you are like me, you find yourself asking what mom or dad would think if they saw these “spoiled” people on TV.

If we can all agree that fear is a potent force, then what are the legitimate uses of it and what constitutes going over the top? Does federalist thinking have anything to add to these concerns? Let me share what I believe to be the case concerning fear. Inciting fear is not immoral per se. Surely an effort to cause mental or untold harm by inciting fear would be immoral, but as a political strategy that is used only to attain particular aims, then it would seem the effects would be limited. But even in these more limited cases, one needs to look at any deliberate use of it by certain criteria. My bias for federalist thinking suggests to me that certain considerations should be taken into account even in these more limited cases in order that its practice be moral and, in the long term, effective.

In order to be moral, a leader or person of power who tries to instill fear must be seeking a legitimate goal. That is, the goal needs to either help procure the society's survival or advance that society in attaining some aim or goal it sets for itself. This I have summarily called the value of societal welfare or, to use constitutional language, an attempt to make a more perfect union. No, this is not an argument that claims the ends justify the means because the means is not causing real harm; it is merely causing a discomfort that one cannot totally avoid in life. Fear springs from too many sources to count; it is just a condition of life. And if used legitimately, fear, whether emanating from another person's threat or from the factors of a situation, serves to motivate functional behavior on our parts. I lived in Miami, Florida in 1992 and watched the impending hurricane, Andrew, making its way toward my home. The fear I felt caused me to take prudent steps in trying to ameliorate the damage of the storm. I might have been hampered by ignorance, but not by the level of fear the news reports engendered. Fear can be a good thing.

If a strategy to engender fear is not legitimate in terms of its aims – and therefore not moral – then to be effective, the perpetrator needs to at least be able to give reasons that are accepted as legitimate by sufficient numbers of people. Reagan stressed in the PATCO case, for example, that the workers had broken their contracts and therefore he was within his legitimate power to take the actions he did. Not only does the goal need to be legitimate, but the punishment needs to be within the bounds of the reciprocity principle. That is, it can't overkill or stretch significantly beyond the harm that is being addressed by the policy. The air traffic controllers were about to cripple airline passenger service back in 1981, therefore devastating the business and personal travel plans of the American people. This action would have seriously affected millions of people and cost the economy significant amounts of money. Reagan was able to sell the idea that this was unacceptable and that it offended the principle that government could not stop providing an essential service – sort of like soldiers going on strike. Therefore, it was reasonable to fire the controllers in order to stop their ability to, in effect, extort the American people. Reagan wouldn't hear of such a thing and was able to convince the American public that his decision was, in effect, being forced on him. It is no secret that Reagan was not friendly to unions, despite the fact that he had previously been president of an actors' union, and that the unions in general were not supportive of Reagan. Ironically, PATCO was one of only two unions who had supported him in his election campaign. Whether his actions were moral or not I will leave to you to decide. What the case does demonstrate is what a leader must do and say when attempting to evoke fear in a segment of a population and at the top of that list is the ability to sell both the legitimacy of that threat and its proportionality.

Equal to the consideration of not being too harsh, those who are attempting to incite fear have to make sure that the threatened punishment is harsh enough – it surely was in the PATCO case. It has to inflict significant pain. If not, the party at which the strategy is aimed will lose respect for the leader and might encourage even more egregious behavior. In settling on the specific threat, one needs to remember that pain has a relative dimension. What is painful for one might be simply an inconvenience to another or not painful at all. Or it can be something avoided or neglected. He who decides to engender fear needs to know his/her target and other practical elements surrounding the conditions in which the threat is being extended. And, as far as observers are concerned, the threat needs to be transferable to their imagination – they have to feel, boy, I'm glad I'm not the one being threatened.

Studying cases in which fear is a factor can be very telling as to the nature of politics. For example, I think that in the recent standoff between the Tea Party Republicans and the Democrats in Congress, the Tea Party members did not instill enough fear in Democrats to be able to get their way. It wasn't that the potential punishment wasn't severe enough, but rather that it lacked believability. The target couldn't imagine the instigators were willing to share in the mutual pain a default to the debt limit would cause or that those who could stop this eventuality would not stop it. The result is that the Tea Party members have lost respect in the eyes of their opponents either in government or among many citizens.

While the fear factor did not influence enough controllers in the PATCO strike – they continued the strike and landed up losing their jobs – Reagan established his ability to inflict punishment in such a way that people believed he could and would do so in the future if the stakes were high enough. While not all of us agree that President Reagan was the best for this nation, we all must agree he was able to garner our respect.

1Professional Air Traffic Controllers Organization – the labor union of the air traffic controllers

DIVISIVE FORCES

While not all political systems are federal – either from a structural point of view or from a philosophical point of view – all systems have to have a federal element in their makeup. That is, every political system has to bring together the different interests or factions that make up the polity within the geographic area under its authority. Using functionalist language, systems must satisfy a systems maintenance function. The people of a nation have to feel, to some meaningful degree, federated with their fellow citizens. If we look around the world at political systems that are finding it difficult to sustain themselves, the basic problem is that there are interests within their jurisdictions that don't want to “play ball” under the binding understandings that prevail as the systems' foundations. We might judge, in those individual cases, that those who are balking at the mode of the prevailing politics have every justification to do so, but that is not what concerns me here. In the cases in question, the politics have become disruptive and potentially dangerous for the people caught up in such disruptions. Look at the current conditions in Egypt or Syria. Can we detect an underlying condition or set of factors that account for the upheaval?

In both those cases, there are either sectarian or tribal divisions in which violent conflict reigns among groups. Now, there doesn't need to be one hundred percent agreement among the interests or factions of the populace, but there needs to be, again to some meaningful level, agreement over the basic constitutional provisions which define the “legitimate” structures and processes of the system in question. All systems must address this concern of how well the interests are dealing with their conflicts, not just in terms of who is winning and losing, but in terms of the legitimacy of their political ways of handling those conflicts.

We Americans are not immune to these concerns. This recent crisis over the shutdown and debt level reflects in some very basic ways this concern. Currently, we Americans are not being paranoid to worry over what's happening to our politics. I am not trying to overstate this; we, as a nation, have many unifying forces that help us overcome the more divisive aspects of our politics. But to the extent we reflect these less than optimal conditions, we, upon analysis, do exemplify some of the same divisive tendencies plaguing more disrupted nations. How can one describe these tendencies? Simply stated, modernization – a turning away from traditional ways and beliefs – has put enormous pressure on segments of the population that share in the traditional perspective that up until recently characterized most nations of the world.

The traditional perspective is noted for being religious, agricultural, parochial, and committed to time-honored, established institutional mores, rituals, symbols, and biases. Ever since the industrial revolution, more and more people throughout many areas of the world have given up, to varying degrees, on traditional ways of thinking and behaving. While many social forces might be contributing to this change, there exists no more meaningful one than urbanization – the movement of vast numbers of people to cities where all the traditional assumptions about life come into question and under attack. If for no other reason, the cosmopolitan nature of urban life challenges traditional beliefs, and those who are swept into this migration to cities find the new environs opposing many cherished beliefs and prejudices.

Consequently, with these social evolutions, people who have not fully accepted modern ways of thinking feel more and more under siege. They feel their whole way of life is threatened and the resulting fear can very well lead to extreme behaviors. This is especially true if we mix in religious fervor as is the case in more rural areas – although many who move to the city cling to their religious beliefs and have access to well- organized religious outlets. With its accompanying beliefs, this fervor is characterized by a particular belief in a highly judgmental higher being; one that is, we are warned, disposed to bring down upon us the harshest of punishments if we do not believe and live according to “inspired” precepts. This latter element in the traditional provides a very strong source of zeal toward protecting the traditional. In many nations, many are so motivated by this zeal that they end up expressing their anxieties by engaging in extremely divisive politics.

So this is the backdrop to many serious clashes. We can see it in our own nation to some extent. I would claim that to the degree there is any discussion of succession in our political talk, it is deeply rooted in this basic conflict between the traditional and the modern. And it is in this setting that I found most interesting a recently issued report by an advisory council to the CIA. The United States National Intelligence Council's report suggests the possibility of non-state governing entities which are based on organized efforts in areas such as finance, education, media, logistics, and health care. Fed up with the inability or unwillingness of nation-state governments to address problems and issues in areas such as those I just listed, special arrangements are being established. Organized around urban centers, these entities are derived from governmental subcontracting agreements:

A quick scan across the world reveals that where growth and innovation have been most successful, a hybrid public-private, domestic-foreign nexus lies beneath the miracle. These aren't states; they're “para-states” – or, in one common parlance “special economic zones.”¹

Probably the most noted one of these para-states is centered in Dubai. They can be found in Africa, Middle East, and Asia. They are highly numerous in China. My questions are, what will this do to the conflicts fueled by threatened, traditionally minded populations; will they exist apart from the less urban areas of nations, unaffected and coexisting or will they add to the turmoil we already see taking place? How can federated forces within these nations be encouraged and strengthened so that any such development as this apparent one will be accommodated? This is a challenge and one that can be softened with populations that are knowledgeable and sensitive to the need of citizens to feel federated with their fellow citizens – yet another challenge for civics education.

In this blog, I have presented the liberated federalism construct as a synthesis between natural rights and critical theory. From the natural rights, liberated federalism gets its concern for the individual and for respecting those rights that reflect the private domain of people's lives. From critical theory, the proposed construct gets its concern for equality. But from the social/political evolution we have experienced in the last fifty or so years, liberated federalism gets its concern for a secular based public policy. A lot of this evolution has to do with the increasing levels of urbanization we are experiencing, a development that makes parochial conception ever more unworkable in the diverse environments so many people find themselves. How we account for the segments not exposed to these new social forces – or if exposed, unwilling to accommodate – will take highly sophisticated strategies aimed at promoting federalist commitments among populations if national entities are to retain any viability in the future.

1Khana, P. (2013). The end of the nation-state? The New York Times, October 13, Sunday Review section, p. 5.

A SINFUL EPISODE

Imagine. A person comes up to you and asks you for a loan. You're in a good mood and say, okay; how much do you need? Whatever the amount, you loan the person the money and then time goes by. Enough time elapses that the debt is due and the person hasn't paid you back. You know enough about the person to know he or she can pay you back, but obviously has decided not to do so. Under such conditions, is that person behaving in an immoral way? I think so and I suppose you do too.

On our national political scene, we have just witnessed the political party, or a segment of it, that has fancied itself as the God-fearing party, do two things: one, it has led the government to a shutdown and two, it has threatened to effectively obstruct the legislation that would allow it to raise a self-imposed debt limit and, by doing so, prohibit the government from paying its debts. In other words, through their action, they decided the government need not keep its promises to pay back the loans others have extended to it.

Now, who owns that debt? A significant amount is owned by foreign entities (about 33 1/3 %), most notably the Chinese (about 7.8 %). But most of it is owned by Americans, either by government accounts – such as the Social Security trust fund – or by individuals and private institutions.¹ Perhaps you own some of that debt yourself. Do you own a US bond or US Treasury note or does your 401K have these types of investments in its portfolio? If that's the case, then you do own some of this debt. In effect, if you do, you are the lender I described above, a well-intentioned person who made a loan. You loaned the money with every expectation that you were going to be paid back, especially if the government has the where-with-all to do so. One can judge that promise as a moral commitment. And yet the party that makes a point of how religious and moral it is led the way – and there is some very convincing evidence that this whole episode was a thought-out, if not effective, plan – to either default on this debt or make us believe it would be all right to shirk from the moral obligation these loans reflect. Yet the national punditry has not picked up on this lack of morality.

Now, if I were in charge of running campaigns against these politicians who caused this disruption,– a role I have no business doing – I would, especially in the South, emphasize this immorality. I would point out that many voters probably own some of this debt and that the disruption caused some people real harm, but that wouldn't be what I would emphasize. For one thing, I would bet that the average citizen will not make a distinction between the shutdown and the threatened default. These two elements of our recent crisis will probably be melded together in the minds of voters. So I wouldn't overly harp on those who were inconvenienced or seriously affected by the shutdown. To extreme conservatives, these affected people either shouldn't be working for most of these government programs to begin with – although I found it quite interesting that selected discontinued government services were highlighted as unnecessary interruptions, such as having access to monuments – or they are seen as beneficiaries of illegitimate government handouts. But if campaign language focused on the morality issue – that is, that these officeholders' actions, in effect, broke a promise – and if challenging candidates decry the lack of honesty and integrity a default would have meant, then I think the office holders in many of these safe districts would find their skulduggery exposed in ways that would be salient to those who define themselves as true Christians.

I would also make sure I wouldn't communicate the idea that their representatives were trying to make it more difficult for the government to borrow money. This could very well have been the aim of these extreme conservative pols. But southern voters can view such actions as attempts to discourage investors from lending the money to Uncle Sam or to make interest rates so high the government will find borrowing too expensive. By doing so, these pols would be seen as forcing the government to spend less, possibly resulting in a contraction of governmental services. That is exactly what these voters want. Perhaps the more recent shutdown will convince enough voters that government services are important and provide benefits to many, from children who need medical procedures to veterans wanting to visit the World War II monument. I will be particularly interested in seeing how this whole episode will play out with voters in a state such as Utah. A usually very conservative state, it turns out the US government is the largest employer in Utah and the shutdown found a lot of people on furlough and a lot of local businesses highly affected by the shortage of tourists to the national parks within that state. But to those who have adopted an ideological commitment to scaling back government, such experiences are probably not enough to change their perspectives. Sin sells as an issue and one can make a convincing argument that the threat of default can surely be seen as sinful.

1Lauter, D. (2013). Los Angeles Times, October 16, see http://www.latimes.com/nation/politics/politicsnow/ la-pn-national-debt-facts-20131016,0,7261833.story

MUDDY LEGAL LANGUAGE

Teaching the role of the Supreme Court to secondary students can be tricky. A couple of intuitive notions are at play when considering this role and, in and of themselves, students can readily understand them and their implications on relevant structural elements of the judicial branch. One is that in a democracy, the majority rules and the other is that fairness calls on the majority not being able to have its way in certain situations – such as when the majority wants to tell you what you can say and what you cannot say. The first element relates to the authority of legislatures to make laws and set public policy. The second element more directly relates to the role of the court in that it is that body that determines when the legislature, the democratic body, goes too far. If the explanation of the court could stop there, the task of explaining it would not be too hard. But of course, it doesn't stop there.

To begin with, the rights that the court protects are not absolute. As the standard example goes, while you have the right to say what you want, you don't have the right to yell “fire” in a crowded theater. Or, to mention a not so often cited example, your property can't be taken away from you without due process of law. This is a complication that can confuse the student because many students tend to think in absolute terms – do you have the right or not? But it gets even more confusing than that. There are other obvious complications such as those entailed in the given situations in which litigants find themselves; there are the complications of the related law and there are the complications of past judgments – the precedents – of prior court decisions. Each of these has a bearing on a given case before the high court. And finally, there is the complication of the language that judges and those who comment on the work of the courts use to describe the institutional practices of these judges and courts.

Take the term, for example, “activist judges” or “activist courts.” Whether a judge or a court is “activist” is important; it reflects a central philosophical bias of a particular judge or court. It is also part of the political jargon the media uses to describe the activities of the judicial branch, either in the person of an individual judge or a particular court. In essence, the term is usually used to categorize decisions that overturn legislated laws – ostensibly because they go too far and offend the Constitution. It is the Constitution that, from a legal angle, identifies the rights we have. So, by finding a law unconstitutional, a court is saying the legislative branch passed a law and the executive branch signed a law that has in effect – even if unintentionally by the other branches – offended a provision of our constitution. The term activist is used somewhat pejoratively in that the judges, at least at the federal level, are not elected. It is interesting that the language does not say the legislators ignored the Constitution when they passed the challenged law. Instead, the prevailing language places the court in a defensive posture by implicating it is going against the wishes of the people, as expressed through their elected representatives. Usually when you hear the word “activist,” in this context, it is not meant to be a good thing. And the side that usually makes the charge that certain judges or courts are activists has been conservative or the Republican Party.

This charge has been used in a variety of cases – those that overturn federal law, those that have overturned state law or other legal practices, and those that have overturned prior judgments, the precedents – by finding such law or action offending some aspect of the Constitution, in one way or another. To explain this fully would take much more space than I care to take up here, but I hope you can see my main contention: this whole business of the courts and their judges gets complicated. And it doesn't end there.

I indicate above that the charge of activism leveled against the courts and judges has come mainly from our conservative politicians and pundits. But there have been enough right wing opinions issued by the courts that have also overturned legislated law. Some of these decisions have garnered enough public notice that the charge of activism has been leveled against them by our liberal or Democratic politicians and pundits as well. So to skirt the charge – and make this whole business even more complicated – the right, headed by Supreme Court Justice Antonin Scalia – has made a distinction. He distinguishes decisions as activist not on whether a court overturns a legislated law, but on whether the court is upholding or overturning a law based on a right or other basis not distinctly mentioned in the Constitution. If it is, then it is being activist. If it is not, then the court is not activist, but instead it is “engaged” or it is practicing engagement. An engaged court, according to this view, is just simply doing its job, even if it is overturning the will of the people. On behalf of civics instructors, let me thank the good justice for clearing up the whole thing.

But let us examine the main example that conservatives like to use in this distinction. They claim that overturning a precedent, the principle that abortion is a privacy issue, can be done because the Constitution does not specifically identify the right to an abortion and that relying on the constitutional provision protecting privacy is too broad a stretch. A conservative judge, in other words, could not protect this “right” because abortion, as a right, is not identified in the Constitution. On the other hand, the history of abortion and its regulation have not been so one-sided as to say that if the founders considered abortion they would not have designated it a private affair and, therefore, protected by the Fourth Amendment. Authorities, historically, have not been clear or one-sided in their consideration of the legality or morality of the practice. Even religious authority did not definitively proclaim abortion to be sinful through the centuries – the Roman Catholic Church did not ban abortions until the 1500s. While there seems to have always been a questioning of the morality of the practice, it is very likely that the founding fathers thought that such an issue should be determined by local standards. The issue became national when the Fourth Amendment, with its protection of privacy rights, became a nationally protected right through the auspices of the Fourteenth Amendment; that is, when the courts incorporated privacy into nationally recognized rights – which prohibits Congress or state authorities from legislating or performing governmental practices denying the right. Then the question became: when the founding fathers ratified the Fourth Amendment, would they have considered the decision of getting an abortion a private matter? To say that they had to specifically identify abortion in the text of the Constitution is, I believe, irrational – the language of the Constitution was not written with that level of specificity. For example, do you have privacy rights concerning your collection of photos? Most would say you do, but the Constitution doesn't mention photos – they didn't even exist in the 1790s. If courts are to become “engaged,” they need to be reasonable in their engagement.

According to Justice Ruth Bader Ginsberg, when it comes to judging whether a law, policy, or a precedent is constitutional or not, one can ask three questions: does the legal question before the court relate to a violation of a fundamental right? Does the legal question before the court relate to frustrating the political process? And does the legal question before the court relate to an alleged discrimination of minorities? If the answer is yes to any of these questions, justices should be extra vigilant in reviewing the case and seek solutions that are the least offensive to any of the rights violated.

How activist is our current Supreme Court?¹ Both liberals and conservatives have leveled the charge against the current sitting high court – the Roberts Court. According to the New York Times, the following score card can be issued: In terms of reversing the court's own precedents, the Roberts Court has done this in 1.7% of its cases compared with the Warren Court (1953-1969) and the Rehnquist Court (1986-2005) which had, respectively, a 2.4% rate. In terms of overturning laws, the Roberts Court has done this in 3.8% of its cases compared to the Burger Court (1969-1986) which had a 8.9% rate. Generally, comparing the Roberts Court to courts in the post World War II period, our current court has not been particularly activist, at least as measured by the metrics just indicated. But then again, a civics teacher who is trying to explain all this might say, “Yes, but this doesn't indicate how engaged these courts were.” Huh? Oh well; perhaps a teacher should just avoid, no matter how important, the term “activism” or “engagement” all together. After all, its use has been mostly for political purposes. Liberals regard the court activist when it overturns liberal laws and conservatives do so when the court overturns conservative laws. The important point is that the court can overturn laws as the Congress can pass and the President can sign constitutional or unconstitutional laws. Students should know what that means and why it is that that authority exists.

1For a helpful summary of the Roberts Court's level of activism, see Liptak, A. (2013). How activist is the Supreme Court? The New York Times, October 13, Sunday Review section, p. 4. The account of the language game introduced by Justice Scalia - “activism” vs. “engagement,” as well as the percentages used to compare the Roberts Court with previous courts, is derived from this article.

AIN'T NO BUSINESS

I have described and explained the natural rights construct. I have stated that this construct has become the prominent perspective among Americans. Again, that is not to say that other constructs don't have influence on how we see our social world. But what I am saying is that this particular construct is the most influential of these perspectives. And as such, it is being applied to the policy formation of more and more endeavors. One such endeavor is the running of our schools.

We expect our businesses to be run in accordance with natural rights thinking since, in a capitalist economy, we depend on individuals to take their fates in their own hands, be courageous, risk the resources they can bring to bear, and begin a business. By doing so, they increase our wealth, provide a wanted product, and create jobs. The natural rights construct is a view of the world that encourages such actions by promoting the individual to define, for him/herself, the values, goals, and aims he or she will pursue. For many, aiming to maximize his or her financial and material well being is central to his or her value system. Business pursuits, experience tells us, are prominent ways to seek such rewards. This, in itself, is admirable and desirable. The problem is that when such thinking comes to be the prominent way of seeing things, it can influence our view of how we should run just about all of our affairs. To illustrate, let's look at how the natural rights perspective is being applied to education in the US.

In writing about this, I have to depend on reports from others, because I have not been a classroom teacher since 2000. That year is rather pivotal, with the soon to be inaugurated administration of President George W. Bush. Through his efforts, the reform legislation, No Child Left Behind, took effect. Of course, of more recent vintage, the reform, Race to the Top, has also been initiated. In both cases, several policy options have been started. These, in turn, have been inspired by natural rights views. In short, policy makers have put into effect practices that either reflect business thinking or provide opportunities for entrepreneurs. Let me share some of them with you.

The first aim of an entrepreneur is to create a demand for a product or for some change in an existing product. Those who are spearheading our view of business thinking in running our schools have sponsored and actively engaged in convincing us that our existing school system is a total failure. This effort started a long time ago. In 1983 (that was thirty years ago), President Reagan had a commission report on the state of American education. The report, A Nation at Risk, described an educational system in dire straits. Not only were things terrible; the conditions posed a danger to our national security – even though we have since been able to win a Cold War and still enjoy, as the only nation, a superpower status. In her recent book, Diane Ravitch¹ – someone who bought into this dire argument initially – points out that National Assessment of Education Progress results, graduation rates, and college admittance numbers all point to the fact that education in America has been improving since the sixties when we began desegregating our schools. Yes, our improvement has been slow and there are gaps in this general trend, as is the case with black and Hispanic students, but it seems that any shortcomings are more a result of income inequalities than anything else. Comparing our income distribution situation with Finland's, a nation reputed to have one of the world's best educational systems, they have 5% of their children living in poverty whereas we have 23%. In addition, Ravitch points to another condition that is highly responsible for our shortcomings; that is, we have re-instituted segregation – this time reflecting residential patterns, not segregation statutes – and the current practice is legal and has been generally accepted. The problem is that the effects of poverty and a general lack of resources among these segregated schools make improvements in them extremely unlikely.

After a demand is created, then a set of reforms is suggested. These include

• sanctioning charter schools – many of them being organized in a way that provides profit-making opportunities for those entrepreneurs so disposed
• instituting high stakes testing which has affected curricular choices such as eliminating non-tested subjects, arts and such, from course offerings and has also motivated cheating on the part of educators who know their employment depends on test results
• outsourcing of public school functions to private agencies instead of providing adequate staffing such as psychological and counseling professionals – a change that provides even more for-profit opportunities – and –
• instituting carrot and stick strategies to motivate teachers to adopt desired practices – these include merit pay, which has never worked, and posting teachers' names alongside the testing scores of their students

All of these changes are meant, we are told, to increase competition and accountability. The results of these changes, so far: None. The rate of improvement has not changed.

Ravitch, in her book, has several recommendations. They make sense and deserve a try. But I am afraid, given our current views of schools and what we see as the optimal ways of getting things done – as defined by the natural rights construct – we are very unlikely to give such reforms any chance. She, for example, calls for diagnostic testing – which aims to identify students' needs instead of high stakes testing. She also calls for toughening entry requirements for those who seek to enter the teaching profession. This would bolster the status of teachers and increase our trust in them so that they, in turn, can be allowed a level of autonomy that encourages professionalism and innovation among our teacher corps. I have a number of other changes to recommend, but let me end with a general observation.

From my dated first-hand knowledge of schools and from what I have been able to find out about what is currently going on now in our schools, I think that any effort toward improvement needs to be holistic in its approach. While some insights from the world of business can be helpful, that perspective should not serve as our central mode of thinking. To begin with, education is not a consumer service such as having your vacation planned or having your plumbing fixed. It is a service that represents a discipline. Education is something you commit to and are willing to sacrifice to attain. It is a complex service with multiple factors affecting how it transpires. A lot of this I have written about before, but Ravitch's new book provides the opportunity to address this topic anew. I am not as readily disposed to viewing our educational system as “successful” as Ravitch seems to indicate. There are serious problems with the way we run our schools. But I agree with her that a lot of the problems stem from “business practices” being applied to education. We have adopted a view of education as a typical consumer product; we have applied “bean counting” practices that, in the search for short term efficiency, that have overburdened our school staffs; and we have underestimated the challenges of poverty, segregation, and low morale among school personnel in running truly successful schools. All of these defy a “magic bullet” solution or the adoption of a business model. Instead, we need to see a school as a potential or existing community – a community that is born from a community and should maintain, within and without itself, communal characteristics.

1The account in this posting of Ravitch's book is taken from Kozol, J. (2013). This is only a test. New York Times, Book Review section, September 29, p. 21. While I have not had the opportunity to read Ravitch's recently published book, I have read and can recommend her previous book, Ravitch, D. (2010). The death and life of the great American school system: How testing and choice are undermining education. New York, NY: Basic Books. In this earlier work, she introduces many of her concerns with the effects on business thinking on our school system.