DC Confidential. David Schoenbrod
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their representatives to get Congress to spend money to improve their harbor, those representatives might run up against other representatives whose constituents would resent the cost but garner support from still-other representatives whose constituents wanted to ship goods through the improved harbor.6 Congress would thus collect information from far afield about the consequences of proposed legislative actions, much as the congress of honeybee scouts collects diverse information about the merits of potential homes for the colony, more than any one scout could collect separately. So, however Congress resolved an issue, the clash between representatives would make it evident to both representatives and constituents who would gain and who would lose from the proposed action and in what ways.
Moreover, the open debate between clashing interests together with the personal responsibility of members of Congress would mean that they would get the credit for conferring a benefit on one group of voters only if they also shouldered the blame for any harm the decision inflicted on other voters. This should give them strong incentives to take into account the interests of both groups. This was the case, for example, during the early 1800s when domestic manufacturers of cloth wanted Congress to set high tariffs on imported cloth to protect them from “the greatest evil—the arts and designs of rivals abroad.” Others opposed higher tariffs because they would increase the price of cloth, and they told their representatives so. These representatives, as Daniel Webster observed at the time, were “afraid of their constituents,” and Congress ultimately produced legislation that balanced the interests of both manufacturers and purchasers.7
Moreover, the drama of open debates would educate citizens about the choices facing the government, even those who didn’t take to schooling in classrooms. The people desired this education. Once the states ratified the Constitution, voters insisted on transparency in the political process. For example, when the Senate violated the Constitution by keeping its proceedings secret, public pressure forced it to relent. As the historian and professor Robert Wiebe stated, “The anger at secrecy, the demand for openness, was a functional response to situations that made democracy impossible.” In the decades after the Constitution was ratified, Congresses actually voted on the great issues of their era, deciding the law itself on hot-button issues such as tariffs. Legislators took positions on the hard choices and constituents understood.8 The Constitution had made the government a drama.
Desire to read about the drama contributed to an upsurge in literacy. From 1800 to 1840, literacy rates among white adults increased from 75 percent to around 95 percent in the North and from 50 percent to 80 percent in the South. With a largely literate public, the United States had more newspapers in 1822 than any other country despite its smaller population. According to the historian and professor Daniel Walker Howe, “Foreign visitors marveled at the extent of public awareness even in remote and provincial areas.”9
One might suppose that the combination of an informed public, open debate, and the selfishness inherent in human nature would tear the country apart. This did not happen because there is another side to human nature—the deeply seated desire to be fair to others in one’s own community. Learning how one’s demands will affect others, as happens in the process of open debate, sparks the desire to be fair. Modern behavioral scientists have found that people are less apt to try to grab for themselves something that a stranger leaves behind if they actually see the stranger.10
The desire to be fair can be seen in everyday events. When many people are waiting to, say, buy tickets for an event, they will usually line up to take their turn and newcomers will generally join the end of the line rather than butt in. First come, first served.
People also behave that way even in extraordinary events. After the Allies liberated Paris in 1944, Coco Chanel offered bottles of her famous Chanel N° 5 perfume to American GIs at a price even they could afford. The soldiers had grown up when travel overseas was a rarity and the Great Depression made money scarce. They could thus barely believe that they were in Paris, let alone that they had survived the Normandy invasion. Now, despite their scant pay, they could bring home to their wives, girlfriends, or mothers a luxury that epitomized Parisian glamour. That luxury was indeed hard to come by. When, the following year, President Harry Truman met with Winston Churchill and Joseph Stalin in Potsdam, Germany, he had to write home to Bess that he couldn’t get a bottle of Chanel for her.11 Yet, as much as the GIs wanted the perfume, they lined up first come, first served—regardless of rank. Fair is fair. Standing in that line to buy a bottle of perfume for my mother, my own father, an enlisted man, saw the supreme commander of the Allied Forces in Europe, General Dwight Eisenhower, arrive at the Chanel store and go to the back of the line.
Photograph by David Schoenbrod, 2016.
FIGURE 3. The bottle of Chanel perfume my father bought for my mother during World War II.
Scientists see no paradox in seemingly selfish people desiring to act fairly, because in the millennia-long competition among societies, those societies whose members tend to treat one another fairly work better and therefore are more likely to thrive. Being fit to survive includes fairness as well as selfishness.12
Yet circumstances can make it tough to be fair. This, again, can be seen in everyday events. When, long ago, I started to take the Amtrak train from New York City to upstate New York, passengers dutifully lined up in the waiting room to board the train, but as the space became increasingly congested over the years, a few passengers, pretending that they saw no line, butted in at the front. Noticing that others were cheating, more and more of the passengers butted in. What had been an orderly line in time turned into a crush of individuals elbowing to get to the head, with most trying not to be too obvious about it. Most nerve, first served.
Thankfully, Amtrak put Charles John Jackson in charge of boarding the trains. He could see that passengers felt horrible about being put in this situation and set about creating circumstances in which people would act fairly despite the congestion. His solution: put up cordons to make the line plainly visible in order to communicate to passengers that “we do care about people waiting in line patiently.” He found that about 98 percent of people complied voluntarily and assigned three subordinates to stop those who didn’t. Now that passengers have become accustomed to circumstances that make for fairness in boarding the trains to upstate New York, hardly anyone tries to cheat. Behavioral scientists would approve of Mr. Jackson’s strategy. Some of them have found, for example, that people are less apt to cheat when they sense that others aren’t doing it.13 I saw an instance of the payoff take place on the day before Thanksgiving in 2014, when 649 people waited to board the midmorning Amtrak train. They formed a line seven hundred feet long. The line required six right turns to fit into the cramped and crowded station. And, as far as I could see, no one tried to butt in line.
The people who wrote the Constitution sought to structure the government to create circumstances that would encourage the fair side of human nature and discourage the selfish side. The Constitution gave members of Congress the job of taking responsibility for the benefits and burdens of legislation, and, as a necessary consequence, the job of educating themselves and their constituents on who would gain and who would lose from the proposed action.14 In sum, to do its job well, Congress needs to have open debate, just as the honeybees need to have open debate to find good sites for their hives.
There was open debate when Congress attempted to pass civil rights legislation in the early 1960s and the fair side of human nature won out with the passage of the Civil Rights Act of 1964. The act forbids discrimination on the basis of race, color, sex, religion, or national origin. Dr. Martin Luther King Jr. and President Lyndon Johnson as well as Congress deserve great credit for its passage, but there are other heroes who don’t get the credit they deserve: the ordinary Americans who supported the legislation because they wanted their country to be fair.
In the summer of 1962, Senator Hubert Humphrey of Minnesota, the most outspoken proponent of civil rights in the Senate, had nowhere near the two-thirds vote from the senators needed to stop the filibuster by Southern