I missed most of the Vietnam War, because I was too young to follow the news and it was too recent to be covered in my American history classes. I was thus glad to have the opportunity to read Mark Bowden’s Hue 1968: A Turning Point of the American War in Vietnam. Bowden is a superb writer and he makes the reader feel present for the house to house combat needed to take back Hue from the North Vietnamese and National Front forces during the Tet offensive. And he persuasively makes the case that a battle won by our Marines marked the beginning of decline in popular support for the war that led to America’s ultimate defeat.
The book has important lessons for today. First, the generals in charge of our troops did not understand the war because they were still fighting the battles of their youth. This retrospection led them to overestimate the importance of armor and underestimate the effectiveness of the Vietcong whose lack of advanced weaponry made less difference in the jungle and urban areas than it did the more open fields of Europe.
Similarly today, it seems that the generals have not mastered the art of war in Afghanistan, relying on tactics like the surge that succeeded in Iraq but have not beaten the Taliban. Whether President Trump’s new more focused counter-terrorism strategy will work better is beyond my capacity to judge. But I was heartened that the President demanded to speak to non-commissioned officers who had spent a lot of time fighting in Afghanistan.
The argument for ideological diversity on campuses is strengthened by the growing political polarization in society. Political polarization is costly, because citizens then are more likely to dismiss a policy position based on the identity of its supporters and opponents than on the merits. Polarization also makes it harder to reach compromises, and compromises are more often likely to lead to political stability than ideas with a more narrow range of ideological support.
One of the reasons for polarization appears to be that citizens today are more able to live in ideological and partisan cocoons than in the past. They can look at the websites they like and not at those that might challenge their views. Cities and towns also sort themselves out more by political beliefs. Those opposing the predominant views of the their current residence are more likely to move to a more politically hospitable climate. Apparently, Republicans and Democrats even choose to follow different celebrities although they do admire a golfer or two in common.
The most obvious place where citizens should learn to interact with ideological opponents and confront arguments that will challenge their views is the university. But this experience is less likely if the gatekeepers of ideas are almost uniformly of one political persuasion. And so many of our modern universities are ideologically monochromatic.
Has there ever been a July 4 other than during the Civil War or the Great Depression where the domestic prospects of our nation have been so dismal? No presidential contest has ever featured a choice that was as obviously dreadful as this one. I would be happy to hear of contrary claims from the annals of American history, but to me even Nixon v. McGovern falls short of our present plight. Nixon’s role in Watergate was not known at the time of the election, and McGovern at least was a man of good character.
But today we are about to elect someone with disabling character flaws and no commitment to the liberty that has been at the core of American ideals. On character, both Trump and Clinton have reputations for dishonesty unusual even for politicians. They also excel at dividing the American people, Trump with his outrageous remarks about ethnic groups, Clinton with her penchant for blaming her and her husband’s troubles of “vast conspiracies” of her political enemies even in instances where she has every reason to know the cause of these troubles is in her own home.
And these character flaws threaten to widen some of our most dangerous fault lines. Trust in government is at one of the lowest points ever. A President widely regarded as dishonest will exacerbate the trust deficit. Americans are more polarized than at any time since the Second World War. Polarizing figures making uncivil remarks about one group or the other are sure to lead to a more divided nation.
In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”
Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.
Legislation on divisive issues is much less likely to lead to polarization than executive fiat.
In two recent posts, I have explored the effects of nonoriginalism in the separation of powers. Here I want to mention several ways in which such nonoriginalism has contributed to the increasing polarization of our society, by permitting the political branches to avoid having to compromise.
First, as I argued in one of these posts, the delegation of legislative authority to the President leads to polarization. Such delegations allow the President to decide on policy rather than having the Congress and the President do so through the passage of laws. In the latter case, compromise would be needed to pass laws, which would lead to less polarization.
Second, the Supreme Court’s updating of the Constitution through nonoriginalist interpretation leads to polarization. With such updating, a majority of the Court can allow one of the political parties or factions to get its way in constitutional law. By contrast, without such updating, constitutional change would require the passage of constitutional amendments, which require compromise to secure the supermajorities necessary to pass them.
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers area.
A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences. Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take. These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions.
In a recent article in the New York Times Adam Liptak describes the increasingly partisan splits on the Supreme Court. More than at any time in its history, he argues, the divisions in cases follow partisan as well as ideological alignments. Thus, today the five justices appointed by Republican Presidents (the Chief Justice, Scalia, Kennedy, Thomas and Alito) vote consistently more conservatively than those appointed by Democratic Presidents (Ginsburg, Breyer, Sotomayor, Kagan).
For the moment I will accept Liptak’s statistics and focus on his explanations. Liptak argues that partisan polarization is the result of increased polarization more generally, as Republicans and Democrats move to become cohesive ideological parties, distant in their policy preferences. Moreover, Liptak argues Presidents have become better at predicting justices’ votes. These factors are certainly relevant, but I think they miss one important change. Originalism and its often close cousin in statutory interpretation—textualism— today create a larger gulf in jurisprudential approaches to the Constitution and statutes between Republican and Democratic appointees.
There was not such a consistent jurisprudential chasm in the Court for much of the latter part of the twentieth century. There were no originalists on the Court when Scalia joined it. Thomas then became another powerful originalist voice. While Alito and Roberts are not pure originalists, the original meaning of the text has a strong pull for them even if precedents restrain the extent of its power. Their opinions on the commerce clause in Sibelius are excellent examples of the power of the text; the Democratic appointees did not even substantially respond to the originalist arguments.