Framing the Issue
The U.S. Constitution contains an intricate framework of divided power amongst the three branches of government. Checks and balances are in place that constrain any one branch from usurping the role of the other branches. As some commentators have noted, a key feature of this structure, especially in how it manifests in our political process, is that it recognizes the existence of competing political factions and ideas and necessitates solutions be reached through bargaining with and accommodating the concerns of the other. As described by Yuval Levin of the American Enterprise Institute, “the modes of governance created by the Constitution compel a fractious people to build coalitions and seek mutual accommodation.”
This coalition-building process can at times be contentious, as individuals of different viewpoints seek to secure a victory for their specific vision of the country’s best path forward. Differences in opinion can also lead to heated arguments. Despite these disagreements, we aren't as ideologically polarized (i.e., having disparate opinions on policy issues) as we think we are or as the press leads us to believe. Rather, we're what sociologists refer to as “affectively polarized”—we don’t like the people on the other side of an issue or of the other political party. Studies have found that this affective polarization (or emotional polarization) appears to be driven by a number of things, including an individual’s misbeliefs about the policy positions of the other party and a sense that members of the other party dislike members of their party. Our high rate of affective polarization, combined with the fact that our politicians are themselves are very ideologically polarized, leads to a political culture where elected officials and the media use the public’s fear and anger as an electoral and business strategy which then erodes trust in institutions and threatens our democracy. Needless to say, our current level of affective polarization is not normal and is not conducive to the functioning of a healthy democracy. The good news, however, is that affective polarization is something that can be addressed through respectful conversation amongst Americans of different perspectives.
- In 2017, the Pew Research Center conducted a survey that showed how the U.S. electorate had become significantly more polarized since 1994.
- Among other findings, the survey showed that 95% of Republicans were to the right of the median Democratic voter and 97% of Democrats were to the left of the median Republican voter, both significant increases over 1994 (64% and 70%, respectively, in the 1994 survey).
- If anything, the electorate has become even more polarized in the seven years since this most recent version of the study.
- In a widely disseminated and disturbing report issued by the Public Religion Research Institute in 2023, nearly one-quarter of survey participants agreed that political violence may be necessary “to save our country.”
- Disrespectful behavior also affects more than the public square. A recent study by the Society for Human Resource Management found that U.S. organizations collectively lose more than $1.2 billion per day in reduced productivity per day due to uncivil behaviors at work and $828 million per day due to absenteeism caused by incivility. According to the study, workers who experienced or witnessed incivility at work reported an average productivity loss of approximately 31 minutes per occurrence, while the incivility also caused others to intentionally avoid the workplace altogether.
There are likely several reasons for this occurrence:
- Economic and demographic changes have led to increased geographic sorting of people by political viewpoint. In somewhat simplistic terms, recent decades have seen urban areas become predominately liberal and rural areas become predominately conservative. As a result, more people are living in areas where most of their neighbors share the same political views.
- This lack of day-to-day interaction with competing views lessens the instances in which negotiation and accommodation is necessary—at its extreme, it’s seen when local or state governments controlled by a single party pass wildly partisan legislation without having to seek input from other groups or parties.
- The fragmentation of news media has also exacerbated these issues—more people reside in self-reinforcing information loops with less exposure to different viewpoints. Conservative media and liberal media sources have at times stoked feelings of antipathy towards individuals of different viewpoints in part because it tends to drive viewer engagement and lead to higher ratings.
- The result has been extreme hostility towards opposing points of view and an unwillingness to engage in meaningful dialogues about policy solutions.
But despite the loss of centrists in our political parties and amongst our politicians, does it mean there is nothing that can be done? In a single word, NO. When faced with challenges over the past 248 years, we as Americans have always found a way to rise to the challenge. In our current environment, the challenge facing each of us is learning how to reach out to and respectfully discuss and disagree with those of different political views and opinions.
Facilitators’ Notes
- The key idea is that the current situation isn’t “normal” and isn’t sustainable in the mode of governance set forth in the U.S. Constitution.
- Especially for people under 40, they may have lived their entire adult lives in an era of significant political polarization and need to understand our current situation is abnormal.
- The vilification of fellow Americans with different viewpoints is not healthy for the country, for our daily lives, for our security or for American businesses both small and large.
- The objective is to foster productive discussions among the overwhelming majority of Americans who, while disagreeing, are willing to acknowledge the dignity of people who hold different political viewpoints and are open to meaningful dialogue between them.
- It’s also helpful to note that recent research has shown that there is less partisan or ideological division among the general populace than there is amongst the parties’ respective activists/bases and politicians. Which means if we all work at it, we can find a way to bridge our differences.
- At the outset, you should acknowledge that finding ways to disagree better presupposes a willingness of participants to engage in a civil discussion. We aren’t advocating for engaging with people who have shown that they aren’t acting in good faith or don’t have a desire to learn about approaching disagreements in a more respectful fashion.
- It pays to point out that it would be naïve to assume that this is achievable with everyone. It may not be possible to have a civil, rational discussion with people who glorify violence or hold extremist views and express no desire to engage in a respectful manner. However, we should avoid the temptation to expand in our minds this group and these views to include every person or view with which we disagree. We should encourage people to start with the presumption that most people hold their views in good faith, even if we think those views are completely wrong or even offensive.
Our Current Situation Can Be Remedied
While the current level of political and ideological polarization can seem troublesome, there are skills we all can develop and attitudes we can all bring to the table to enable better communication and more civil discourse over the direction of the country which can lead us all to a better place. These include understanding that:
- “Disagreeing better” isn’t about coming to some magical agreement between opposing points of view.
- Rather, it’s about learning to treat fellow Americans with dignity and respect, regardless of how different our viewpoints may be.
- It also isn’t about simply being “nicer” to one another. Rather, it is also about modeling behaviors that encourage respect, even in disagreement, and stimulate negotiation and accommodation which can then lead to improved unity amongst Americans.
- And finally, it is about highlighting areas of common ground that can lead to our understanding that the differences amongst us are not as extensive as we may think.
If we each try (whether it be with our family members, neighbors, or strangers we meet on the street), we can truly change the current situation for the better.
Facilitators’ Notes
- Discuss how our constitutional system is in certain ways dependent on a spirit of cooperation and accommodation across political viewpoints, requiring us to figure out ways to have respectful arguments and disagreements.
- It can also be helpful to draw on historical documents such as the Federalist Paper No. 10, which argues that our system of a democratic republic is the best bulwark against inevitable factionalism.
How Someone Speaks Matters
How a person speaks and frames their questions or responses matters immensely. It should be obvious that no one will respond well to a statement like “I can’t believe how [stupid/racist/arrogant/wrong] you are.” There are, however, a variety of techniques that enable a person to better engage, and perhaps even persuade, another individual:
- Don’t frame a question with a built-in answer (e.g., Are you willing to let them get away with [voter fraud/stealing the election/etc.]? How can you possibly think the deceased Hugo Chavez interfered in the 2020 election?)
- Restate what the other person has told you to both make sure you heard it correctly and to acknowledge their point of view. (e.g., If I heard you correctly, you [believe/think/feel/etc.] that…).
- Admit when you don’t know something and need to learn more (e.g., I have never heard or read that before, let me look into it…).
- Point out when you both agree on something (e.g., That’s interesting and I agree with you on your concern about…)
- Point out where you have or might consider changing your mind (e.g., That’s a good point. I hadn’t thought about it that way before…).
- Make it clear that your goal is not necessarily to change their mind, but to have them understand your perspective (e.g., I am not trying to change your mind, I just want you to understand my way of thinking [or why I feel like I do]…).
- Don’t frame your point in an insulting fashion (e.g., Let me educate you about this topic….).
Remember, it isn’t about just being nicer to one another—it’s about modeling behaviors that encourage respect, even in disagreement, as a way to stimulate negotiation and accommodation that can lead solutions rather than deadlock, anger and division.
Facilitators’ Notes
Consider two different ways of framing a point in a conversation (e.g., I hadn’t heard that before, can you tell me where you read or learned that? vs. That is the stupidest thing I have ever heard, how could you possibly believe that?). Then ask how each of those alternatives makes them feel. This can lead into a discussion about conversation basics, namely that no one responds well (or changes their mind) if they are being insulted. If anything, their minds may be closed after that exchange.
Lawyers Have a Unique Role to Play
Lawyers occupy a unique status in society due to their central function in upholding the rule of law. As such, lawyers can play an important role in restoring respect to our public discourse and teaching others the skills necessary to do the same. These skills, many of which are learned in law school, include the ability to:
- Listen – Whether it is to their client or to the opposing side, lawyers are trained to listen. Listening enables a person to understand the feelings and opinions of another person and what concerns them as well as what motivates them. By listening, you can also discover where you may have common ground, even if you don’t agree on the solution to a given problem.
- Assume the Other Person Is Acting in Good Faith – Unless they have very good reason to believe otherwise, lawyers assume that their clients and opposing counsel are acting in good faith and that they are not out to deceive or mislead.
- Be Respectful – Whether it is to a judge or an opposing counsel, respect is not only required, it is the name of the game of you want to be successful.
- Be Able to Stand in Your Opponent’s Shoes – One of the first skills a lawyer learns is the ability to argue either side of an issue, which requires stepping into their opponents’ shoes to understand their thinking as well as their concerns.
- Focus on the Facts – In the end, facts matter and taking the time to find them out is critical. Basing your opinion on less than solid ground is not a winning strategy.
- Look for Areas of Compromise – Lawyers are used to working through disagreements with opposing parties to get to solutions or compromises.
Facilitators’ Notes
Lawyers can use their professional experience to talk through these skillsets and how they are essential to the functioning of our legal system, and indeed, to everyday discussions.
If you are a lawyer, points you might make include:
- An integral part of the adversarial process is allowing each side to make its best argument, bolstered by facts and data.
- The opposing party is expected to act in a respectful manner, engage in a good-faith debate and put forth rational arguments.
- While one party or the other may choose to make bombastic, unsubstantiated claims or even bend the truth, it is usually ineffective and, in a courtroom setting, may subject the lawyer or party to sanction.
- It is this experience in conducting honest and open debate that gives lawyers a special understanding of and opportunity to restore civil discourse to our public spheres.
And a Professional and Ethical Obligation to Help Restore Respect
Every lawyer undertakes an oath to support and defend the Constitution and to act with dignity and integrity. Accordingly, members of the legal profession must take a leading role in alerting others to the dangers of our current situation and stressing that a more civil level of discourse is imperative to the health and stability of the country.
- It’s critical to the rule of law and our legal system that Americans can have civil debates without resorting to threats or violence regardless of how much they disagree.
- Our system of government was set up to encourage negotiation and accommodation. It cannot continue to function properly with current level of rancor and with Americans vehemently vilifying individuals of opposing viewpoints or describing them in apocalyptic terms.
- In our toxically polarized political environment, the most important way lawyers can carry out their duty to support and defend the Constitution is to uphold the processes the Constitution creates to work towards "a more perfect Union." Those processes require that we treat our fellow Americans with dignity and respect even while vigorously contesting their views. The Constitution compels us to deal with those with whom we disagree, to bargain and negotiate and to act together with respect even when we do not think alike. As Thomas Jefferson wrote a colleague in 1801:
If we do not learn to sacrifice small differences of opinion, we can never act together. Every man cannot have his way in all things. If his own opinion prevails at some times, he should acquiesce on seeing that of others preponderate at other times. Without this mutual disposition we are disjointed individuals but not a society.
- Members of the legal profession should take advantage of their unique role and expertise to stress the need for civil discourse by reinforcing it in their day-to-day interactions and by being proactive in holding community discussions and other events focused on this issue.
Facilitators’ Notes
- Supporting the Constitution means defending and supporting both the framework and rule of law that it creates as well as its societal norms.
- As previously noted, one of the central features of the Constitution is that, through its diffusion of power and various checks and balances, it sets up a system that requires competing factions to engage with each other in building coalitions and crafting compromises.
- As part and parcel of this, lawyers have an obligation to defend both the constitutional system and the process of civil discourse that is more effective in enabling agreed-upon solutions among parties with differing viewpoints.
Additional Resources:
As mentioned at the outset, there are a number of organizations that are devoted to improving public discourse and they have a wealth of resources to assist in educating people about bridging the divides and explaining why it is imperative that we do so.
These organization include:
References
Boyd, H., Deseret News, “Perspective: How to Disagree Better”