Winter 2012 Bulletin

Induction Symposium: American Institutions and a Civil Society

The 2011 Induction weekend included a symposium on American Institutions and a Civil Society, which featured two panel discussions: The American Military and American Democracy, with Pulitzer Prize-winning historian David M. Kennedy, Donald J. McLachlan Professor of History, Emeritus, at Stanford University; Lt. Gen. Thomas P. Bostick, Deputy Chief of Staff for Personnel for the United States Army; and Maj. Gen. Gregg F. Martin, President of the National Defense University in Washington D.C., and former Commandant of the U.S. Army War College; and The Constitution, the Practice of Democracy, and Unintended Consequences, with David H. Souter, Associate Justice (retired) of the Supreme Court of the United States; Heather Gerken, J. Skelly Wright Professor of Law at Yale Law School; Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago Law School; and Mickey Edwards, Vice President of the Aspen Institute and former member of Congress. The panel discussions served as the Academy’s 1974th Stated Meeting. The following is an edited transcript of the discussions.


The American Military and American Democracy

David M. Kennedy


David M. Kennedy

David M. Kennedy is the Donald J. McLachlan Professor of History, Emeritus, at Stanford University. He has been a Fellow of the American Academy since 1996.

The first panel of this symposium was occasioned by the Summer 2011 issue of Dædalus, which I edited and which examines the modern American military. This is not a book promotion event, but I call that issue to your attention as the backdrop for today’s discussion.

I chose as an epigraph for the volume a maxim from Cicero: “Arms are of little value in the field unless there is wise counsel at home.” That maxim served to focus all the essays in the issue – and our attention here this morning – on the critical importance of the relationship between military institutions and civil society in many different dimensions.

Cicero’s point was driven home to me in a much more homely fashion about three years ago, while I was an observer at Warrior Forge, a five-week-long exercise for Army ROTC cadets between their junior and senior years. I spent a week at Fort Lewis, Washington, observing the cadets. Every evening I would have dinner with the in- structors. Many times over the course of that week, I was asked some form of the following question: “How can it be that the Army is at war but the nation is not?” That question made vivid for me the possibility of a radical and rather disturbing disjunction between the role of the military in our society today and its relationship to civil society at large.

More recently, someone who has much more authority to speak about this matter than I addressed the relationship between a relatively small, inexpensive force and the larger civil society in whose name it is sent into battle.

In his May 2011 commencement address at West Point, then-Chair of the Joint Chiefs of Staff Admiral Michael Mullen remarked:

There is not a town or a city I visit where people do not convey to me their great pride in what we do. Even those who do not support the wars support the troops, but I fear that they do not know us. I fear they do not comprehend the full weight of the burden we carry or the price we pay when we return from battle. This is important, because a people uninformed about what they are asking the military to endure is a people inevitably unable to fully grasp the scope of the responsibilities our Constitution levies upon them. Were we more representative of the population, were more American families touched by military service, perhaps a more advantageous familiarity would ensue. But we are a small force, rightly volunteers, and less than 1 percent of the population, scattered across the country due to base closings and frequent and lengthy deployments. We’re also fairly insular, speaking our own language of sorts, living within our own unique culture.

The Dædalus volume keeps questions about the civil-military relationship in play while examining many aspects of the current military’s nature and characteristics: namely, what today’s military does or is asked to do, who does it, why they do it, how they do it, and what challenges the future holds in all those dimensions. The volume begins with an overview of perceived national security needs and priorities – how they have evolved rapidly in the last decade and how they are likely to change going forward. Readers will encounter discussions of the way definitions of strategic and tactical doctrines have changed commensurately with the evolution of perceived national security priorities. They will find discussions of force configuration and composition that consider whether the demography and structural makeup of the force are complementary with the missions that the force is asked to undertake. There are also accounts of the actual experience of service: the weapons people fight with, the combat situations they find themselves in, the extent to which they are properly trained and prepared for the situations they face, and the circumstances they face once they leave service. The volume’s contributors explore the role of the military, both within and beyond the modern battle space.

One of the underlying premises of this morning’s discussion is that today’s military is not your grandfather’s nor even your father’s armed force. First, it is relatively small: less than one-half of 1 percent of the American population. To put that number in perspective, the sixteen million men and several thousand women who were taken into uniform during World War II represented more than 10 percent of the population, a twenty-fold difference in the incidence of military service in the population compared to today. Also, today’s military force is relatively inexpensive, although this point is somewhat controversial. Even with the supplemental appropriations for the wars in Iraq and Afghanistan, the Department of Defense budget is approximately 5 percent of GDP. At the height of World War II, the military budget was more than 40 percent of GDP, and during the height of the Cold War, it ranged from 8 to 10 percent of GDP. Relative to historical experience, we have a military that is extraordinarily modest in size in relation to the population in whose name it fights, and fairly inexpensive compared to the burden of defense costs borne by the larger economy in recent history. And, of course, today’s force is a volunteer force. Although this fact is well known, many of its implications are less familiar.

The volunteer force, by its very nature, is unrepresentative of the population as a whole. For example, African Americans make up about 12.6 percent of people in the labor force between the ages of eighteen and forty-four, but they represent almost 20 percent of members of the armed forces in the same age bracket. Conversely, Hispanics compose 17 percent of the eighteen-to-fortyfour age group in the labor force but only about 13 percent of the service members in that cohort. Thus, Hispanics are underrepresented in the armed forces and African Americans are overrepresented. The role of women in the services is a more controversial subject, but it is worth mentioning that women make up almost 51 percent of the population in the eighteen-to-forty-four age cohort, but are only 14 percent of personnel serving in the military. Another consideration is the number of people who are not in uniform but nevertheless undertake military missions – in particular, contractors such as Blackwater (now renamed Xe Services) – that by some measures constituted more than 50 percent of the total U.S. deployment in Iraq.

In a 2010 speech at Duke University, outgoing Secretary of Defense Robert Gates called attention to the unrepresentativeness of the force, urging his audience to think about a career in the armed services. He also pointed out that recruiting disproportionately comes from the South and the Rocky Mountain states.

We have before us four leading questions. First, how well have we defined our national security priorities for the immediate future? Second, how well have we configured and composed the force that is asked to secure those priorities in order to fulfill the mission that they are asked to pursue? Third, what do the configuration and structure of the force imply about political accountability or decisions to use the force? I am particularly interested in how the structure of the force and its nature constrain or amplify the scope that the civil leadership has for political maneuver when making the decision to shoulder arms. Fourth, have we configured the force in line with our professed national values of fairness and shared obligations?

On this last note, I will make a final observation about the relation of service to citizenship in its most inclusive sense. Immigrants in the armed forces today–that is, the approximately seventy thousand noncitizen aliens who are serving–are fast-tracked for citizenship thanks to measures enacted by the George W. Bush administration. At the same time, no current citizen has been obliged to serve in the military since the advent of the all-volunteer force in 1973. So service can earn you citizenship, but citizenship does not obligate you to serve–an asymmetry that I find very curious. As an illustrious member of this Academy, George Washington, said in 1783: “It may be laid down as a primary position and the basis of our system that every citizen who enjoys the protection of a free government owes not only a proportion of his property but even of his personal service to the defense of it.” We do not have such a system today.

Thomas P. Bostick

Thomas P. Bostick

Lieutenant General Thomas P. Bostick is Deputy Chief of Staff for Personnel of the United States Army.

We in the Army feel strongly that we must remain connected to the American public, so although I rarely leave the Pentagon, I jumped at the opportunity to speak here today. My father was an Army sergeant for twenty-six-and-a-half years. Growing up with the knowledge that he had gone through President Truman’s executive order to desegregate the force, served in Korea and Vietnam, and lived the life of a soldier while supporting my mom and five kids, I was convinced that his career was not for me. So I have spent thirty-three-and-ahalf years in the service, and I am now convinced that he left early.

I sometimes have a hard time explaining what it is that I do. You could say that I am the uniformed head of human resources for the Army. We have 1.1 million soldiers in the Army. We also have 330,000 civilians. About 60 percent of Army personnel are married, so families matter. The Army comprises active duty, the Army Reserve, and the National Guard. Each of those segments makes up the Army I work for; they all have my email address and many write to me frequently. And it is a joy to serve them.

I will outline a list of items that are on the Army’s plate and that we are working on today. Some cross over into what David talked about; several may not be in line with the theme of today’s discussion, but they are topics you may have questions about. First and foremost, our mission is to win our nation’s wars in Iraq and Afghanistan. In these cases, we are doing what Congress, the President, and the American people expect us to do. After ten years as an Army at war, we are very concerned about the health of our force. No one would have guessed that we would be engaged in these wars for this long. For the many soldiers who have known only war since they joined the military, the stress is significant.

We are seeing negative signs in a number of different areas. Among active-duty soldiers, suicides have tripled, from about 52 suicides in 2001 to 159 in 2010. Alcohol abuse is prevalent in some soldiers who have stood in combat formations for many years. We are seeing increases in child abuse, sexual abuse, and assaults. Our wounded warrior population has increased significantly: we have three hundred amputees, and twenty-six of them are serving in combat today – something that only rarely happened in the past, when very few amputees even stayed with the Army. Secretary of Veterans Affairs Eric Shinseki, who is an amputee, and retired General Fred Franks, among others, have led the charge that amputees and other wounded, ill, and injured soldiers can continue to serve. Moreover, we have many cases of post-traumatic stress disorder. Traumatic brain injuries have occurred in large numbers because of the type of wars that we are fighting.

We have also been engaged in the repeal of Don’t Ask, Don’t Tell. I sat on the commission, led by General Counsel of the Department of Defense Jeh Johnson and General Carter Ham, that reviewed the law for more than a year. Now that it has been repealed, I think our military will do just fine. We are also working on a topic that is important to me: women in our military – how they serve, and where they serve. We still have policies that refer to the “front line” of troops, but we no longer fight in that fashion. Indeed, the reality is that many women serve well beyond any front line, despite laws barring them from combat. We must review our policies on women who serve. On the subject of religious freedom, we may in some cases negotiate accommodations for soldiers who wish to wear beards, turbans, longer hair, jewelry, or other items relating to religious observation. Here, the question is, how do we balance the importance of accommodating religious freedom against the strict discipline, policy, and uniformity that is necessary in our Army?

I spent four years as the head recruiter of the Army. In that capacity, I traveled all over America and the world, reaching out to colleges, universities, and high schools, trying to ensure that we can tell our story. I was also in the Pentagon during 9/11, working closely with Secretary of Defense Donald Rumsfeld and the President, and I was present for many of the decisions that were made on that day and in subsequent days. I have also been deployed to Bosnia, Iraq, and other places around the world. Against that background, I can say that despite the current stress on our force, this is the best-trained, best-equipped, and best-led Army that this country has ever fielded. We are ready to do what the nation asks us to do anywhere, and I am very proud to serve.

Though there are differences of opinion, I and many other leaders prefer an all-volunteer force for a number of reasons. There is a myth that many folks can serve in the Army. The fact is less than three out of ten young people, aged seventeen to twenty-four, can actually wear the military uniform. The remaining seven are unqualified because of education, aptitude, medical conditions, and conduct. When you see a soldier, he is one of those less than three out of ten who can actually wear the uniform and serve in the Army.

In the Duke University speech that David mentioned, Secretary of Defense Robert Gates said, “Most Americans honor and respect those who have chosen to serve, but to most citizens, this war is an abstraction, a distant and unpleasant series of news items that do not affect them personally.” For that reason, it is important for us to engage with the American public. At one of the many functions that I attended as the Army’s head recruiter, I once shared a hotel elevator with a lady who said to me, “You’re looking mighty fine in that uniform. Have you made sergeant yet?” I looked up to make sure I had my rank on (at that time I was a two-star) and said, “Well, no, I’m actually an officer.” She said, “Oh, I understand. So have you made captain?” But I felt good about the fact that Americans are not thinking about generals and senior leaders. They are thinking about sergeants and captains, and it is those sergeants, captains, and the servicemen and women ranked below them who are carrying the bulk of the combat force. But it is clear that we need to continue to stay connected to America.

We are about to draw down our Army, from our current active army of 570,000 soldiers to 520,000 by fiscal year 2016. Fifty thousand soldiers will leave the end strength of our force. In addition, about 150,000 soldiers transition out of the military every year. We need your help not just in thanking our troops for their service, but in helping them transition to civilian life. Roughly 30 percent of former soldiers aged eighteen to twenty-four are unemployed. Part of my $62 billion personnel budget pays unemployment compensation to this cohort. About a half-billion dollars a year goes to unemployed soldiers looking for jobs. Many are talented soldiers. They are medics who have saved the lives of individuals across the battlefields of Iraq and Afghanistan but who lack the credentials to work as medics in an emergency medical team in a hospital. Similarly, I taught engineering at West Point, but if I wanted to take off my uniform tomorrow and teach math at the elementary school where my wife is the principal, I would not meet the certification requirements to do so. Many soldiers face the challenge of becoming professionally certified in the states where they would like to take on a job. We ask for some assistance as these soldiers move on to civilian careers.

Frances Hesselbein, who received the Presidential Medal of Freedom in 1998, said that two institutions have sustained our democracy since our country’s founding: the United States Army – that is, the military – and public education. In turn, we must sustain these institutions. I have encountered many people who thought that the military was not interested in education, but nothing could be further from the truth. Last year, the Post-9/11 GI Bill provided more than $5 billion for the men and women of the armed forces to attend college. More than $60 million of that money went to schools here in Massachusetts in 2010–2011. Last year, $240 million was spent on tuition assistance for soldiers taking courses online or in their local communities while serving on active duty.

I will close by talking about a soldier named Michael from St. Paul, Minnesota. As a senior in high school, Michael wrote a credo outlining how he wanted to live his life. He excelled in sports and loved football, wrestling, weight lifting, and skiing. He thrived on competition and the rush from the crowds shouting his name and the names of his teammates. But while he could have pursued an athletic career, both in college and then perhaps in the pros, he decided against it. He wrote, “When I am on my deathbed, what I’m going to look back on in thirty years is going to be important to me. Will it be thirty years of playing a game that in reality means nothing, or will it be thirty years of protecting the country from all enemies, foreign and domestic? I want to fight for something, be a part of something that is greater than myself.” Michael was killed in Iraq. He was just twenty-two years old. My job, ultimately, is to make sure that soldiers like Michael have everything they need to execute their missions for this country each and every day.

Gregg F. Martin

Gregg F. Martin

Major General Gregg F. Martin is President of the National Defense University in Washington, D.C. He formerly served as the 48th Commandant of the United States Army War College in Carlisle, Pennsylvania.

As Commandant of the U.S. Army War College, I am privileged to lead the Army’s graduate school for strategic studies and national security affairs. The War College’s master’s degree serves as a bookend to West Point’s bachelor’s degree. A number of our students complete fellowships at elite universities and think tanks around the country, including Harvard University, MIT, and Stanford University, and I encourage you to get to know them. Get to know your military as well; this is your military. We are proud and honored to be serving you in this great country. Take the time to meet ROTC students, to meet the National Guardsmen in your hometowns, and to reach out to the units where you live.

The Army War College was founded 110 years ago, following the Spanish-American War, by Secretary of War Elihu Root. When contemporaries advised him to call it the Army Peace College, Root refused, saying he wanted to focus on war “because it’s that most tragic and horrible of all human conditions which mankind can’t seem to avoid repeating.” The reason for founding the school was “not to promote war but to preserve peace.” Through wise, strong leadership, hopefully we can deter war through that strength and wisdom. The motto of the War College, prudens futuri, meaning prudence, or providence, or wisdom for the future, dovetails nicely with the Academy’s mission. We work to develop wise leaders who can advise civilian authorities on the limits of military power, who can explain how best to use military force and when to employ diplomacy, information, or economic power instead of, or in concert with, the military element of power. The ancient Chinese general Sun Tzu said that the epitome of strategy is convincing or persuading someone to do what it is you want them to do without having to fight. But if we must fight, it should only be to create a better peace. We share that mindset at the Army War College.

How does the U.S. military contribute to and help advance a civil, democratic society? Most significantly, the military helps create a secure, orderly international system that gives us the predictability to engage in commerce; to have an economy; and to invest in education, the arts, and science. In an anarchic world where there is no global police force, creating order is the fundamental thing the military does to advance a civil society. Trading ships traversing the oceans do not have naval escorts, but if someone wanted to capture those ships and do us harm, they would have to consider the fact that the U.S. Navy and Coast Guard are patrolling those waters; an attack might not be worth the risk of retaliation.

In the sixteenth century, Thomas Hobbes wrote in the Leviathan that without a force that can impose order and underwrite security, there can be no commerce, “no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man solitary, poor, nasty, brutish, and short.” President Obama delivered a modern version of that message in his Nobel Peace Prize acceptance speech:

I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake, evil does exist in the world. A nonviolent movement could not have halted Hitler’s armies. Negotiations cannot convince al-Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism, it is a recognition of history, the imperfections of man, and the limits of reason.

In its most fundamental role, the U.S. military establishes the basis on which a civil society is built.

At the national level, the United States has chosen since the Vietnam War to have an allvolunteer force. I like the idea of an all-volunteer force because I believe in free will and the inherent goodness of people being able to choose what they do with their lives, a right that I think is embedded in the Declaration of Independence. The all-volunteer force is also very effective. On the eve of the attack launched from Kuwait into Iraq, when I was a brigade commander, it certainly helped that all our soldiers were volunteers. When we got to Baghdad and faced guerrilla war and insurgency – when we were clearing roadside bombs – the fact that every one of those soldiers was a volunteer made us much more effective. No one was there against his or her will; they all had volunteered. However, as David pointed out, perhaps the country has also lost something with this strictly voluntary approach to military service. In May 2011, I had the opportunity to speak at the Harvard Club in New York City to a group of Harvard alumni who were World War II veterans. What impressed me about these great Americans, who went on to have distinguished careers as leaders in business, academia, government, and law, was that they had all served in the military. There was a bond, a sense of common purpose uniting them and their generation, that perhaps we have lost over time.

Also at the national level, the military has been an engine of social change. General Bostick mentioned racial integration. In addition, the GI Bill has long promoted education, leadership, and productivity. The institution of the military and the benefits it has provided, have done much for society.

At the institutional level, every officer and soldier takes an oath to support and defend the Constitution. That commitment is taught, discussed, and repeated at enlistments and promotions. Every soldier and officer understands that he or she serves to support and defend the Constitution. Subordination to and respect for civil authority is ingrained; it’s in our DNA; it’s part of the fabric of the U.S. military. From day one, soldiers are instilled with values that come from the Declaration of Independence. We take very seriously the principles of respect for others, listening to people from diverse backgrounds and points of view, and selfless service – all of which are important to creating a team. These values are part of the ethos and culture of the military.

At the individual level, people join the military today for a variety of reasons, including service, self-development, adventure, and travel. The tremendous young men and women who serve are the reason I have stayed in the Army; they make it a joy and a privilege to serve. When I was a commander at Fort Leonard Wood, Missouri, one of the largest training bases in the country, we did everything from basic training to noncommissioned officer (NCO) education. The military strives to develop soldiers who are competent in the jobs that they are expected to do; who are dedicated to building their character, integrity, and courage; who are committed to others and their team; and who believe in a mission, purpose, and a cause greater than themselves. And when they take off the uniform, it is our goal that they will return to society as better people, better citizens, and better leaders for the country.

The current generation of soldiers, ncos, and officers is truly a national treasure, as is the entire all-volunteer force. The talent, courage, innovativeness, and adaptiveness that these Americans have demonstrated in very complex wars are remarkable. We have probably never had a generation of young leaders, in our country or our military, that has done what these young people have done. One of our great strategic challenges will be carrying out the drawdown in a way that retains the best of them for the future.

The all-volunteer force is an effective force, a national treasure, and an ongoing story. As a country, we need to have a conversation about the points raised in the Summer 2011 issue of Dædalus on the modern American military and by Professor Kennedy this morning. We need to talk about the growing gap between the military and society. One way to strengthen our civilmilitary ties is through forums like this one. The Andrew W. Mellon Foundation has endorsed a forum that joins liberal arts colleges with military institutions in the same area. For example, Dickinson College and the Army War College, both in Carlisle, Pennsylvania, are meeting and collaborating as part of this program. The Army War College also hosts two programs that bring in civilians to engage with our students and faculty, and to learn more about their military. One is the National Security Seminar held in June each year, which invites about 150 civilians and distinguished guests from around the country to spend a week with our students. The second is the Senior Leader Staff Ride, which takes groups to the Gettysburg battle field to explore lessons learned from this epic battle.

In preparation for today’s event, I asked some young officers and ncos what I should tell the distinguished group that I would speak with on Sunday. They said: “Get to know us. Learn about who we are, what we believe in.” They believe in the greatest virtues and values of our country, and they are serving you, the American people. They want you to be interested in and more knowledgeable about them. So reach out and build that relationship. This is a military that you can trust. The idea of subordination to civil authority is in our ethos, and we serve you through the elected officials that you put in positions of authority.

© 2012 by David M. Kennedy, Thomas P. Bostick, and Gregg F. Martin, respectively

To view or listen to the presentations, visit



The Constitution, the Practice of Democracy, and Unintended Consequences

David H. Souter



David H. Souter

David H. Souter is Associate Justice (retired) of the Supreme Court of the United States. He was elected a Fellow of the American Academy of Arts and Sciences in 1997.

We live in a society that is increasingly characterized by a rhetorically and substantially intransigent approach to civic life. Polarization is the word used most frequently to characterize public discourse. To constitutional lawyers, there is something very disquieting about the distinct dissonance between a rhetoric and a substance of polarization, on the one hand, and on the other the history of and required practice under the Constitution of the United States.

Those who have studied the history of the 1787 Constitutional Convention invariably point out that, in James Madison’s view, the most significant issue to be resolved at the convention was the question of representation in Congress. Would it be allocated on a state-by-state or a population basis? How would representation take into consideration the difference in interests between the slave states and free states? In the end, the terms of congressional representation were established in what is frequently called a “Great Compromise”: the states would be equally represented in the Senate; population would be the basis for representation in the House; and the so-called three-fifths clause would account for the institution of slavery, a provision that did not survive the Fourteenth Amendment. The point that lawyers, scholars, and historians of the Constitution always turn back to, as Jack Rakove puts it in his book Original Meanings, is that the compromise was not the sufficient, but the necessary condition for the resolution of the substantial issues at hand. It allowed the convention to propose a Constitution that was ultimately adopted. Thus, the American polity is, in fact, governed by an instrument whose most signal feature is the compromise that made it possible.

But constitutional compromise did not stop there. We all are intuitively aware that exercise of the powers granted to the national government – or, for that matter, reserved to the states – in the structural part of the Constitution can clash with the rights guaranteed to individuals by the Bill of Rights, including the Fourteenth Amendment. These clashes are not resolved by any text in the Constitution itself. And they cannot be resolved if either the powers of the government or the civil rights of individuals are viewed as absolutes. Federal authority and individual rights must be regarded as derivatives of competing principles, each good in itself, but neither of which can be exercised to the limit all the time. There is a constant process of adjustment, a constant drawing and shifting of lines, over time and over changes of circumstance. The Constitution simply cannot operate without this kind of compromise. Which is why constitutional lawyers find it disquieting when the American polity seems to speak most loudly in terms of anti-compromise: that is, in terms of a rigid absolutism of principle on the part of one speaker or another, or indeed, on the part of one major political party or another.

How long can we expect the American people to support a Constitution that is demonstrably inconsistent with the daily practice of politics in American life? We do not have an answer to that question and we do not want to find out what it may be. Instead of waiting to see, a better alternative is to try to look at some of those influences that seem to contribute to the intransigent rhetoric and the reality behind it, and to consider what can be done to mitigate the force of those influences that propel so much of American rhetoric and practice today in the direction of anti-compromise. That is the subject my colleagues will address this morning.

We cannot canvas the entire landscape at this symposium. (We will not, for example, discuss the influence of Internet news sources that offer cherry-picking by those who do not want to hear any viewpoint likely to oppose their own, although that practice may feed an inclination toward anti-compromise.) But we will assess how three major features of the political system relate to a culture of intransigence and will consider what can be done about them–if, indeed, they turn out to be culprits. First, Heather Gerken will look at the effects of congressional districting in creating an uncompromising politics. This topic includes the Supreme Court’s acquiescence in districting decisions that protect incumbents when district lines are redrawn, producing “safe seats,” or positions in which political competition is reduced. Next, Geoffrey Stone will address the extent to which current limitations on regulating political campaign finance contribute to extremism. He will also discuss the significance of the popular primary in producing this phenomenon. Finally, Mickey Edwards will examine the political primary issue, offering some practical thoughts on what can be done, from the standpoint of someone who has served in the political arena. There is no non-porous border dividing the subject matter that each member of the panel will discuss, so there will be a certain give-and-take in the flow of the presentations.

Heather Gerken

Heather Gerken

Heather Gerken is the J. Skelly Wright Professor of Law at Yale Law School.

I will discuss the question of whether our current state of partisan politics and political polarization is caused by districting, and whether the courts, in particular, can do anything about it. I share Justice Souter’s concern about the tension between our constitutional arrangements and our democratic ones. One way to frame the point is with the observation that while our politics is well suited for a parliamentary system, we have a structure that is presidential. The level of political polarization and party cohesion that we see today might work well for a system in which one party can control the entire government, but ours is a system of divided powers and electoral lags. In that kind of system, polarization can wreak havoc. In the best of worlds, nothing gets done. In the worst of them, we play chicken with day-to-day governance issues.

The truth is that our Constitution and our democratic arrangements have never been compatible. Unlike most other constitutions, ours did not contemplate the rise of party politics and the infrastructure that would be necessary to regulate them. At the federal and even the state level, we typically lack the mediating institutions that are an essential part of democratic arrangements elsewhere. As a result, it has fallen to the courts to do much of that regulating. Over the years, as legal scholar Rick Pildes has pointed out, our democratic arrangements have become constitutionalized. Bush v. Gore is just the tip of the iceberg: in many areas, the courts set the terms of political engagement and do much of the regulatory work, including in campaign finance, election administration, and redistricting.

Precisely for that reason, many of us now look to the courts – particularly the Supreme Court – to save us from our polarized politics. If the Constitution can be invoked to force the entire country to apportion in keeping with the one person, one vote principle; if it can be invoked to invalidate majority/minority districts that Congress itself mandated; if it can be invoked to influence the outcome of a presidential election, then surely the courts can do something now. The argument seems so easy. Most observers think that polarization is rooted in redistricting– that is, in the blatant effort of selfinterested politicians to draw districts that are easy for them to win. These “safe districts,” so the argument goes, cater to extreme voters, not moderates. They elect candidates from the edges of the political spectrum, candidates who bring their extreme views to Washington. According to this story, all we need to do is end these egregious gerrymanders and the parties will return to the center, where Duverger tells us they belong in a first-past-the-post system like our own.

The temptation to tell this story is even greater for anyone who is familiar with the Supreme Court’s work in addressing partisan gerrymandering because it is the one area in which the Court has been shy, even deferential, in regulating politics. The Court has confidently entered many parts of the political thicket, but here it has been more circumspect. Its initial foray involved adopting standards so high that no gerrymander could possibly meet them. When the Supreme Court looked to the question again a few years ago, it split so badly that we were left with four justices who believed that the Court could not adjudicate partisan gerrymandering claims; four, including Justice Souter, who believed that it could adjudicate them; and one justice playing Hamlet, saying that maybe the Court could adjudicate them, but not at that time.

As a result, party hacks are well aware that this is the one area of partisan politics where they can act without the Constitution affecting them. Worse, to the extent that the ugliness of partisan gerrymandering has entered into the Court’s sights, its instinct has often been to bless it, or at least to tolerate it. Unlike other cases, where the Court has used its considerable muscle to force politicians to do the right thing, the Court has been very willing to tolerate the self-interest that is at the heart of redistricting. It has held as legitimate the practice whereby parties draw districts to protect incumbents and create safe districts. If only, we think, the Court would censor this self-dealing; if only it would eliminate incumbency protection as a legitimate interest; if only it would mandate that some of these districts be competitive, then, perhaps, the moderates would finally have their say.

This is the tale we tell ourselves about the relationship between the Constitution and politics, and I want to offer a skeptical view. I want to tell you that the tale is too simple; we have been too confident in our diagnosis and too quick to think that there is a cure, let alone a cure that the courts can administer.

So let me start with a diagnosis. It seems entirely plausible that gerrymandering is responsible for the current levels of polarization because safe districts mean uncompetitive districts, populated with lots of voters from one side or the other. It would not be surprising if these districts elected candidates from the extremes as well. There is just one problem with this story: there is not much evidence to support it. It is true that incumbent reelection rates have been rising and that there are more safe districts now than in the past. But it is not clear that gerrymandering is the cause. Safe districts actually increase more between redistricting cycles than during them. And Senate seats, which cannot be gerrymandered, have also become safer because voters are sorting themselves into enclaves with like-minded people.

Far more important is the fact that safe seats do not appear to be much more likely to produce extreme candidates than competitive seats. On both sides of the aisle, the voting patterns of people from swing districts are only slightly less extreme than those of their colleagues who enjoy safe seats. If you see a moderate in Congress, the odds are that he comes from a district that leans toward a different party.

But if gerrymandering safe seats is not the source of polarization, what is? Some believe that the problem began with party realignment, starting either in the New Deal era or during the 1960s, when the Voting Rights Act began to shift party allegiances in the South. Still others look to economic factors.

Whatever the source of change, we were once governed by a four-party system, one that contained New England Republicans and Southern Democrats. That fractured system allowed for moderation; it allowed for political deals that drew in members from both sides of the aisle. But Southern Democrats and New England Republicans, with a few exceptions, are now an extinct species, at least on the national stage. As a result, the parties are much more closely aligned and disciplined. Some think that political elites are causing polarization, and Geoff will talk about the way that primaries interact with party elites to produce polarized politics. Others think that the real problem, ironically enough, is the well-informed voter–that it’s you. You are the ones who know a lot about politics, whom politicians pay attention to, and whose views move farther to the left and the right.

My intent is not to referee these arguments, but I want to suggest that the causes of polarization seem to be at some distance from gerrymandering. As best we can tell, they are complex and contingent sources; the courts might not have enough evidence to fix this problem even if they wanted to. Many of the likely causes of the current political atmosphere are well beyond what courts could conceivably address.

Now, while I believe that the Court cannot save us from our polarized politics, I would like to end on a slightly more cheerful note. Politics is remarkably flexible and dynamic. The parties are changelings; political leaders are shape-shifters. Regulating them is very difficult, something that does not bode particularly well for those of us who want the law to cure what currently ails us.

Take, for example, the struggles in campaign finance to regulate sources of money. Every time we regulate one institution, political interests shape-shift and become another. First, they inhabited the parties, next the 527s, then the 502(c)4s and (c)6s. Karl Rove was once inside the White House; now he is running a shadow Republican party that has no formal authority but hundreds of millions of dollars in its war chest. While the fluid and dynamic nature of politics makes it very difficult to solve a specific problem at a specific moment, it does have one benefit: namely, it ensures that many of these problems will be temporary. Dynamism in politics is a double-edged sword in this respect.

Consider the question of polarization that plagues us all today. For decades, people were concerned that the parties were too weak, too divided, too incoherent. We were not worried about polarized politics; we were worried about races between candidates who gave voters no real choice: it was Tweedle-Dum versus Tweedle-Dee. Even as recently as the last few years, academics have been calling for efforts to make the parties more coherent, not less. Many academics, for example, were mourning the rise of the candidate-centered election, in which the parties did nothing more than cater to the people running for office and had no influence over the positions that these candidates took. Now, of course, the worry is just the opposite.

One could say sarcastically that the lesson here is “be careful what you wish for,” but I think the lesson is a deeper one. We should be cautious in assuming that political arrangements will remain stable. It would be a mistake to think that what we have now is permanently etched into our system. Political elites will always have the incentive to exploit divisions within the party. There is little question, for example, that the GOP is currently a highly disciplined party, but it is an uneasy alliance. One of my friends likes to joke that the Republican Party is made up of the flat-earthers and the flat-taxers. Setting aside the exaggeration, I do have my doubts about whether the partnership will always remain so stable.

So, too, those on the Democratic side are hardly natural bedfellows. These alliances are ripe for shattering. The rough-and-tumble nature of politics–the incredible energy behind it–fuels restlessness and change. That makes it harder for us to regulate politics, to figure out what the right reform is and to predict its consequences, but it does suggest at least one prediction that we can make about the politics of the next decade: they will change.

Geoffrey R. Stone

Geoffrey R. Stone

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He has been a Fellow of the American Academy since 1990.

Polarization in American politics today is generally understood to be a problem. Indeed, the current state of affairs seems incompatible with our constitutional aspirations for the way our government should operate. If the polarization in Washington simply reflected the polarization of the American people, then we could at least take some comfort in knowing that what is happening is the result of what our democracy calls for at the moment. But this turns out not to be true: the American public, in fact, is not all that polarized. Political scientists tell us that, at present, 40 to 45 percent of Americans are more or less moderate in their views, a percentage that has been fairly standard for much of American history. The greater polarization we perceive today is not reflected in the electorate, and that fact should give us pause.

Understanding polarization requires a closer look at how Congress is constituted. In 1970, 47 percent of the members of the U.S. Senate were regarded as moderate. Today, that figure is 5 percent, and it is even lower in the House of Representatives. The decline of moderate views in Congress suggests a kind of dysfunction–a dramatic gap between the views and attitudes of the American people and what we wind up with in our elected representatives. Something is out of whack.

Heather looked at the process of gerrymandering, in which districts are drawn to preserve safe seats, as one possible culprit. As she noted, despite the argument that more extreme candidates are elected in safe districts than in competitive districts, the empirical data suggest that the cause of today’s polarization is still not well established. Another possible culprit, perhaps ironically, is the primary system. In line with the theme of this panel, to the extent the primary system is a culprit, it is indeed an example of unintended consequences.

Party primaries came into existence in the late nineteenth and early twentieth centuries, largely as a reaction to the backroom deals of party bosses, who routinely selected candidates without any direct input from the “people,” thus limiting voters to a choice between the two individuals selected for them in smoke-filled rooms. Progressives thought that this arrangement was not a very good way to run a democracy, so they devised the primary as a way to take the selection of candidates out of the control of political hacks. The party primary was thought to be a highly democratizing institution that strengthened the American political system.

Ironically, party primaries are now seen as one of the potential culprits in the polarization problem. There are fairly obvious reasons why that might be so. Because Republicans and Democrats vote in separate primaries, one candidate is likely to represent more or less the mid-point among Republicans and the other is likely to represent the mid-point among Democrats. Both are likely to be relatively far from the center of the overall electorate. As a consequence, candidates selected in party primaries usually do not reflect the views of the 40 to 45 percent of Americans in the moderate middle. Rather, they tend to represent the 30 percent on either end of the spectrum.

This phenomenon appears to play a large role in producing the kind of polarization we see in our elected officials. We no longer have professional politicians looking for candidates who are most likely to win the general election – that is, candidates near the middle of the political spectrum. After all, if one side produced a moderate candidate and the other a relatively extreme candidate, you could be pretty sure who was more likely to win. The party elite understood this perfectly well.

Making the primary system even worse in this regard is the fact that participation in primary voting has fallen dramatically over the last half-century, from more than 70 percent fifty years ago to about 40 percent today. The people who are most likely to vote in party primaries are those who are most invested in the selection. They are likely to hold more extreme views than more moderate voters. Thus, one potential explanation for our current polarization problem is our use of party primaries, which produce more extreme rather than more moderate candidates for the general election.

How can we solve this problem? One possible solution, short of going back to the party bosses, is the open primary, which allows anyone to vote in a party primary, regardless of party affiliation. In 2000, however, the Supreme Court held that open primaries are unconstitutional, stating that the parties have a First Amendment right of association that guarantees them the right to decide for themselves who can participate in the selection of their own party’s candidate. The danger, of course, is that in an open primary of this sort Democrats could participate in a Republican primary to nominate the weakest Republican candidate. To allow individuals who are not members of the party to “distort” the selection process in this manner, the Court reasoned, is an unconstitutional violation of the party’s right of free association.

More recently, several states have begun experimenting with a different form of open primary, one that is nonpartisan. Anyone can run in this type of primary, and the highest vote-getters, regardless of party affiliation, earn a place on the ballot. This system has the potential to give moderate voters a much greater influence on the selection of candidates who appear on the general election ballot. The parties themselves can either endorse one or both of the candidates selected in the nonpartisan primary, or they can use other mechanisms to put their own candidates on the ballot. The constitutionality of this system remains to be determined, but in 2007, the Supreme Court tentatively suggested that such a system might be constitutional.

The other issue I want to mention puts the Court in a very different light than the gerrymandering issue. In the gerrymandering context, the Court might be taken to task for being too passive in its willingness to allow states to have partisan gerrymanders. In the campaign finance context, however, the objection to the role of the Court is somewhat different. The concern in this context is that money–particularly corporate and union money–has too great an influence on the political process, creating disillusion and alienation on the part of voters, who feel that the “system” is completely outside their control or influence. They may therefore turn away from active participation in our democracy. Money is also viewed as having too great an influence in terms of both corrupting candidates and officeholders and allowing the views and interests of corporations and unions to dominate the political process.

Faced with these considerations, Congress, in bipartisan legislation signed by President George W. Bush, enacted the Bipartisan Campaign Finance Act of 2002, which limited the amount that corporations and unions could spend in political campaigns. Two years ago, in Citizens United v. Federal Election Commission, in a sharply divided decision, the Supreme Court held the legislation unconstitutional, concluding that restrictions on the ability of corporations and unions to spend whatever they wished in the political process violate the First Amendment.

That decision put an enormous obstacle in the way of those who believe that the current state of affairs is incompatible with a healthy democratic system. As a practical matter, and short of a constitutional amendment, the only realistic way that Citizens United could be overturned is if the fears of Congress and of the dissenters in Citizens United prove to be true. In Citizens United, the majority argued that the justifications offered by Congress for the law were too speculative to warrant what they saw as a severe restriction on the rights of corporations and unions. If it turns out that the members of Congress who enacted the legislation and the justices who dissented in Citizens United were correct, and that a world of freewheeling and unlimited corporate and union political expenditures does indeed have dire consequences for our political system, then a future Court might be in a position to overrule Citizens United. The catch-22, however, is that even if the Court at that point is prepared to overrule Citizens United, it is highly unlikely that a Congress elected by corporate and union expenditures will be willing to enact legislation restricting the very expenditures that got them elected.

Mickey Edwards

Mickey Edwards

Mickey Edwards is a Vice President of the Aspen Institute and Director of the Institute’s Political Leadership Program. He served in Congress for sixteen years.

A successful democracy requires successful institutions that carry out their functions well, that earn the respect of the people, and that therefore make the people comfortable with the system in which they live and in which they are willing to participate. When we talk about our institutions, we note that our political system is not working; our election system is not working; and our governing system is not working. Those are fundamental problems that diminish people’s confidence in the institutions that we ask them to support. I believe the root cause of these problems is the amount of control over the election system and the governing system that we have ceded to the political parties that control access to the ballot, how district lines are drawn, who sits on what committees, and how the basic functions of Congress are carried out.

All of us want choices in life. We want choices in our smartphones, and we want choices in the kinds of microwaves we can buy. But we allow two private parties to tell us that unless we are able to jump over major barriers, when we go to the polls in November we may choose, among all the people in our constituency, between Candidate A and Candidate B. I do not know why we insist on more choice among the electronics we use than among the people who make our laws, but we have let our local, state, and federal governments cede the power that we entrust to them to private organizations that have as their only goal the gaining and keeping of power.

I would like to add to what Geoff said about the role of the primary election in producing more extreme candidates, an issue I approach from a purely process and constitutional direction. Take, for instance, the 2010 Delaware U.S. Senate primary. In a state of one million people, thirty thousand voted for Christine O’Donnell, and as a result, Mike Castle, former governor and popular congressman, could not appear on the ballot. Similarly, at the 2010 Republican convention in Utah – a state of three million people – 350,000 voted for someone other than the incumbent Senator Robert Bennett, who then could not appear on the ballot. In most states, a loss in the primary precludes a candidate from appearing on the general election ballot, no matter how many people in the state might have preferred that candidate as their first choice.

When you are elected to public office, you should base your vote on three things only: first, your constituents’ preferences and interests; second, your own judgment; and third, what the Constitution allows or prohibits. When you let other factors enter into that equation–voting because it is good for your party, or because of who contributed to your campaign–you are not merely playing games with politics, you are eroding the entire democratic system. Democracy is not about whether the candidates elected are centrist, or moderate. It is about whether the voters are able to choose among all the possible people they might be able to select to make laws for them in Washington. As Justice Souter mentioned, it would be nice if you had a more centrist outcome. That is not my primary concern, however, because most of the great movements that have made progress in our country–the civil rights movement, the women’s movement, the gay rights movement, the labor movement– were not movements from the center. The center has no magic to it. Progress comes from having principles and operating a system whereby the people have choices.

The Constitution states that to be a member of the U.S. Senate or the House of Representatives, you must be an inhabitant of the state from which you are elected. This provision, which broke from previous experiences in governance elsewhere, means that you must know your constituents, their concerns, and their preferences. I served in the House as a Republican in a heavily Democratic district that had not elected a Democrat since 1928. When the Democrats controlled the legislature, they redrew my district. (I should say that Republicans do exactly the same thing.) My district moved from the center of Oklahoma all the way up to Kansas, and then in an upside down “L” halfway over to Arkansas. After the redistricting, I was representing wheat farmers, cattle ranchers, and small-town people whose views, perspectives, and concerns I did not really understand. They were the ones who were hurt by a system that allowed districts to be redrawn according to what served the advantages of the political party in power.

When George W. Bush was president, Washington Post columnist Dana Milbank wrote that the president was stepping out of his role as head of government to function in his other role as head of state. I was teaching at the Woodrow Wilson School at Princeton University at the time, and I asked my students, “What jumps out at you about that description? Is it basing rights, flyover rights, trade agreements?” The answer is: the president is not the head of government! We do not have a head of government. We have three separate, equal branches of government, and that separation of powers is critical to the way we operate as a free people. Our system vests a great deal of power in Congress, which has the final say over going to war, over tax rates, over spending decisions, over creating or ending programs. The situation in Congress today recalls Gilbert and Sullivan’s H.M.S. Pinafore, in which Sir Joseph maintains that he has been appointed ruler of the Queen’s Navy because “I always voted at my party’s call, and never thought of thinking for myself at all.” In Congress, your party label decides how you vote on Elena Kagan’s or Sonia Sotomayor’s confirmation to the Supreme Court; how you vote on economic stimulus; how you vote on almost every kind of issue that comes up.

There are solutions. I favor all candidates running on the same ballot. I favor the nonpartisan redistricting commissions that have been implemented in thirteen states. And I favor changing the entire basic functioning of Congress: a shift to nonpartisan staff and taking away from party leaders the ability to choose who sits on what committees in exchange for promises to vote the party line. I would also advocate a move toward a less partisan speakership. But we will not solve the problem unless we change our framework. We keep going back to the theme of, “Take back our government.” We did it in 2010, 2008, 2006, and 2004. Nothing changes! And it is because the system we have is based on the good of the party, not the good of the country.

©2012 by David H. Souter, Heather Gerken, Geoffrey R. Stone, and Mickey Edwards, respectively

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