How the debates at the Constitutional Convention concerning impeachment clarify "high crimes and misdemeanors."
Our identity politics could use some Madisonian wisdom.
In an earlier post, I argued that our current legal regime, which has created protected and non-protected classes of Americans, is one important source of our current political alignment and a reason why we have “identity politics.”
Since at least Plato and Aristotle, political scientists have recognized that laws exert something like a gravitational pull on political culture and coalitions. It is not a coincidence that we get a “coalition of the ascendant” a few decades after having created protected classes, and a simultaneous (and growing) backlash among Americans pushing the notion of a “white” identity (Irish may apply). Our new cultural binary—minorities or out-groups (protected classes), versus “the whites”—springs at least in significant part from our legal regime.
This situation is bad. The intersectional Left, and, I fear, the “Alt-Right” and parts of the Trump coalition, have concluded that it is in fact a civil war. There are said to be two groups (which, I suppose, we can call “minorities” and “non-minorities”) and we must choose between them. More moderately minded people such as Dennis Prager have even started to say we are in a cultural civil war—between those who support bourgeois norms and those who oppose them. That professors like Amy Wax are denounced as “racist” for defending bourgeois norms suggests there is, alas, something to this view.
Some far-seeing observers have been worried about precisely this development for quite some time. The sociologist James D. Hunter discussed it in his 1991 book The Culture Wars and his 1994 book Before the Shooting Begins.
Our friends from the French Enlightenment may give us insight into our situation. James Madison, according to his William Cabel Rives, was fond of quoting one famous bit from the writings of Voltaire. In 1731, the French philosopher wrote:
If one religion only were allowed in England, the government would very possibly become arbitrary; if there were but two, the people would cut one another’s throats; but, as there is such a multitude, they all live happy, and in peace.
Applying Voltaire’s logic to the cultural/political divisions of contemporary America, we seem to be in danger of settling into having “but two,” with the ominous ramifications Voltaire anticipated.
His insight mirrors the logic of the famous “extended sphere” from Federalist 10. In Federalist 51, when Madison recurs to the extended sphere argument, he highlights the problem of religious factions. That suggests he was reading Voltaire, perhaps in addition to David Hume, when formulating his argument for extending the sphere.
The extended sphere was the solution to the problem of faction. “By a faction,” said Madison in Federalist 10, “I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The challenge was to ensure that legislation would be made in service of the common good, not merely the good of particular factions. Madison argued that an extended republic would do so better than a small republic. The problem was particularly acute in what we call “representative democracy.” What if the majority wants something that is not, in fact, the common good? To prevent a “majority faction,” which would tyrannically impose its will on the rest, from forming:
Either the existence of the same passion or interest in a majority, at the same time, must be prevented; or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know, that neither moral nor religious motives can be relied on as an adequate control.
In a republic that is larger rather than smaller, it is unlikely that there will be a majority for anything other than the common good. Writes Madison:
Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked, that where there is a consciousness of unjust or dishonourable purposes, communication is always checked by distrust, in proportion to the number whose concurrence is necessary.
In sum, those setting up such a government will use “the extent and proper structure of the union” to ensure “a republican remedy for the diseases most incident to republican government.”
If my conjecture about the impact of our regime of protected and non-protected classes is correct, it is our laws that have narrowed the sphere, or perhaps I should say created the political and cultural conditions in which that is more likely. We have, I fear, put in place political conditions that push us toward an “intersectional” civil war between two factions: protected “minorities” and “whites.”
To secure peace, it might be necessary to extend the identity sphere. But how?
One idea would be to get rid of, or at least modify, our regime of protected and non-protected groups. At the moment, we hire swarms of diversity bureaucrats whose job it is to ensure that our work environments follow the simple non-protected/protected binary. Fear of lawsuits, and a desire to do what the law tells us is just, reinforces their efforts, leading more and more of us, it seems, to internalize this binary way of looking at ourselves. This simplistic division is a major factor that is impelling us toward culture war. It is one reason why the tragic death of Treyvon Martin, who was killed in 2012 by a man who is Latino, black, and white, somehow became a black-white issue, inflaming racial tensions in America.
There is, after all, nothing natural in the brute distinction of “white” and “non-white.” America certainly has some history along that line, but it is more complicated than many think. The category of Latino, for example, contains many Mexican Americans and others who happen to consider themselves “white” not “minority,” as Peter Skerry noted in his 1993 book Mexican Americans: The Ambivalent Minority.
Then there are Italian Americans. Sometimes I show the first scene of the movie The Godfather in class, drawing upon Paul Rahe’s fine essay on that scene. “Why did the undertaker’s daughter not get justice in court?” I ask. One student replied, “Italians used to be a minority.”
A fascinating comment. And as Joseph Bottum pointed out in a recent essay, the Columbus Day holiday was created back in 1892, as a symbolic rejection of bigotry, “as the nation recoiled from the horror of 11 Italians lynched in New Orleans” the year before. There is no reason why the same process of assimilation may not happen more largely in America. Our racial lines are not set in stone. They are established by law.
At the moment, our official documents ask us to classify ourselves according to a racial “pentagon”: black, white, “Hispanic,” Asian, Native American. Our laws treat all but one of them as a protected class. But, we may ask, is the kind of discrimination that Asians have faced in the United States comparable to the discrimination that blacks have faced? Does the category “Asian” make sense at all, or are the histories of, for example, people from India and people from Korea too different?
Then, too, if people of Indian descent deserve special treatment, is this equally true for people whose ancestors were Brahmans as for those whose ancestors were Untouchables? Is it reasonable to treat descendants of Spanish feudal lords and descendants of the indigenous Meso-Americans they exploited the same? Given the diverse history of the peoples in Spanish-speaking parts of the Americas, is the category “Hispanic” coherent?
And for that matter, is the discrimination that Irish, Italian, and Polish people faced in the United States in an earlier time really so different from that encountered by people from, for example, Korea? As recently as the 1980s, Polish jokes were a big deal, after all.
Maybe it’s time for the U.S. Census, and other official and non-official forms, to reflect the glorious mosaic that is America. End the tyranny of the racial pentagon, and replace it with a more open-ended list. Ask us to write in our ancestors’ country (or more likely, countries of origin) and/or ethnicity or race of origin. By doing that, we might begin to break free of the narrow confines of the racial pentagon, pushing back against an anachronistic legal simplification.
Because so much of the legal apparatus is based upon statistics—you will be sued if you don’t have X percent of each minority in your school or your company—such a change might force our civil rights litigation to focus on actual cases of discrimination rather than on statistical anomalies.
Highlighting Americans’ great variety of countries of origin—that is, extending the identity politics sphere—would free us from the imperialism that imposes false racial categories on us. The government has helped to create today’s situation by establishing an artificially narrow list of “official” racial identities. Allowing our official classifications to reflect the broadest historical and cultural truth would be an essential step in reversing course.
In so doing, we would be deploying a republican remedy for the vices of identity politics.