What’s to blame for our divided nation? The cause can also be the cure
© Getty Images

Over the past several decades, many factors have contributed to the polarization of America — but how closely has the U.S. legal system been inspected as a leading factor?

Primary elections have certainly been discussed, and are no exception. A well-known political scientist, V.O. Key, demonstrated long ago that primary elections, which are run by the political parties, push candidates toward the extremes. Though that is not without benefits — it allows parties to go to the public with a clear program and gives the public a clear policy choice — the increasing reliance on primaries to nominate candidates, starting in 1972, has had a predicable political impact.

In response, some states are opening their primaries to all qualified voters, instead of just party members. If parties are allowed to choose, opening primaries to independents can be an effective response to political polarization. While the court has objected on First Amendment grounds to state laws that overrule party preferences for a narrower, committed partisan electorate, states can obviate these objections by removing the designation of the primary winners as the parties’ nominees. The system can provide the solution to its own problems.

Changes to broadcasting and news dissemination have had a similar effect on our nation’s divide.

Some may remember when there were just three national networks to choose from, although the largest cities also had independent stations. Those networks all competed for the same national audience, and networks avoided anything that would drive away any segment of that audience. But the law started to change, in 1976, allowing cable companies to air many more channels than they had before and splintering the broadcast market.


The rise of internet broadcasting and digital podcasting splintered the market further. Niche broadcasting is much more attractive in a splintered market — content providers need to be distinctive to be noticed at all. The incentives, therefore, changed radically: When we choose to watch or listen, we first choose whose news. 


President Teddy Roosevelt described national service and public schools as “among the great agents of democratization.” But we have eliminated the draft and fractured the schools.

Beginning in the 1930s, federal agencies blocked banks from lending to African-Americans and blocked developers from building integrated developments, thus cutting them off from newly developing industries and incomes. And the battle for public money and parental choice among private, charter and religious schools provide continuing avenues for self-segregation by race, religion and class.


Developments inside the schools reinforce some of the polarization. The Constitution bars public support for specific religious faiths or conclusions, for example, but religious history and comparative religion have never been barred, although the court blocked Louisiana from requiring teaching of scientific creationism or scientific evolution as conditions for teaching the other. Comparing religious and scientific explanations for human origins would expose students to competing ways of thought and the possibility of conversation. Excluding that discussion may be contributing to the virulence of the battle against science, including environmental science. Conversation can lessen fear.

Polarization is also built into the ways that we choose industry- and class-specific remedies for economic uncertainty. Petty prejudices have destroyed coalitions of working people before. The southern aristocracy broke the back of southern populism in the late 19th century over race. And since the ’30s, American progressivism has been hobbled over urban-rural as well as racial divides.

The Nixon-Moynihan negative income tax proposal, designed to treat everyone the same way, provides a good example of a way to build a bridge instead of a chasm between groups. They suggested a negative income tax, which would provide for the poor, the unemployed and small farmers who can barely stay afloat. A negative income tax doesn’t distinguish farmers from factory workers, people with different skills or types of business, rural or urban, white or black, Native or naturalized American. It only distinguishes between those who need help and those who don’t — something our current “welfare for the wealthy” system does not do.

Since we have destroyed or blocked many of the once-vibrant paths of brotherhood among Americans, the polarization we see today should be no surprise. It goes well beyond culture and attitudes, to some of the basic structures governing the society in which we live. 

While no single solution can overcome all that divides us, unity of purpose, through our shared system of law, might allow us to make progress toward seeing and advancing common interests. A single program of relief for the people who need it would have financial, moral and rhetorical advantages over programs responsive to armies of lawyers, economists and other apologists for competing businesses and industries. Taking the pork and polarization out of politics is a worthy goal for a unified America.


Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. A widely recognized constitutional scholar, he has served on the NY Civil Liberties Union board, the NY Advisory Committee to the US Civil Rights Comm’n, and is the Jay & Ruth Caplan Distinguished Professor at Albany Law School.

The views expressed by contributors are their own and are not the views of The Hill.