File Under: From Your Mouth To God’s Ears

When someone made a positive prediction in her presence, my grandmother would employ a favorite  “go to” phrase: “from your mouth to God’s ears!” It was her way of saying she certainly hoped that whatever was being predicted would turn out to be true.

Grandma has been gone for quite some time, but that phrase was the first thing that popped into my head when I read this report from Politico.

As many as five Democratic-led House committees next year could take on DeVos over a range of issues such as her rollback of regulations aimed at predatory for-profit colleges, the stalled processing of student loan forgiveness and a rewrite of campus sexual assault policies.

“Betsy DeVos has brought a special mix of incompetence and malevolence to Washington — and that’s rocket fuel for every committee in a new Congress that will finally provide oversight,” said Seth Frotman, who resigned as the Consumer Financial Protection Bureau’s top student loan official earlier in protest of Trump administration policies likely to be examined by Democrats.

In any other administration, DeVos’ “special mix of incompetence and malevolence” would have garnered far more media attention. Trumpworld, however, has such a monumental amount of both that she has had to share that attention with others in the abysmal cohort comprising our nation’s current administration.

Among the incoming committee chairs antagonistic to DeVos is Rep. Rosa DeLauro (D-Conn.). She’s in line to lead the Appropriations subcommittee overseeing education funding, and–like the other incoming chairs identified in the article–she’s coming to the job with her sights firmly set on DeVos.

The panel’s oversight work, DeLauro said, will focus on ways to “hold Secretary DeVos accountable for her agency’s failure to uphold federal protections for our students.”

DeLauro called DeVos’ record on student debt issues “appalling,” citing the administration’s moves to eliminate Obama-era rules meant to cut off funding to low-performing colleges and make it easier for defrauded borrowers to obtain loan forgiveness.

“I will make sure Secretary DeVos knows Americans want her to protect students and veterans, not the for-profit school industry,” she said.

Maxine Waters will head the Financial Services Committee; earlier this month she accused DeVos of a “full-on attack on civil rights protections for students—particularly students of color, students with disabilities, transgender students, and survivors of sexual assault.”

A number of watchdog groups have brought lawsuits that can serve as agendas for these committees:

Groups like American Oversight, National Student Legal Defense Network and Democracy Forward have all filed multiple lawsuits against the department — many focusing on its ties to the for-profit education industry.

“We are certainly hopeful that the Department of Education will cooperate with the incoming Democratic chairs’ oversight requests,” said Aaron Ament, president of the National Student Legal Defense Network, which published a list of oversight topics for Democrats to take on after the election. “However, given this administration’s track record when it comes to following the law, it would not be surprising if Congress has to use subpoenas to get any useful information.”

Trump’s cabinet–with a combined net worth estimated at $14 Billion–is filled with appointees chosen mainly for their deep antagonism to the missions of the agencies they head. (Total ignorance of the matters under the agencies’ jurisdiction is a plus.) But even in that pathetic assembly, DeVos stands out.

Hostility to public education? Check. Lack of even the slightest understanding of education policy debates? Check. Devotion to her fellow plutocrats who are making fortunes by ripping off students and taxpayers? Check. Total lack of respect, regard or concern for the students DOE supposedly serves? Check.

When Politico’s mouth gets to God’s ears, bring popcorn.

 

What We Can Do

Yesterday, I spoke to the Danville Unitarians about–surprise!–the importance of civic knowledge, and what each of us can do to encourage its acquisition…Here’s what I said. Apologies for the length.

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I was asked to talk today about the importance of what I call Civic Literacy—and to suggest what your congregation and each of you individually might do to encourage other people to acquire the knowledge necessary to properly discharge their citizenship responsibilities.

Let me share some background. In late 2010, I was teaching my undergraduate class in Law and Public Policy. I approach this subject-matter through a constitutional lens, because—after all—in order to be legally enforceable, policies have to be constitutional, and it helps when policymakers have some idea of what the Constitution requires. I begin with a brief description of the Enlightenment (which few of my undergraduate students have ever heard of), proceed to the “architecture” of our constitutional system, and then consider what people mean when they talk about “original intent.”

I often introduce that discussion by asking what James Madison thought about porn on the Internet.

Usually, the students to whom I direct that question laugh and say something to the effect that Madison could never have imagined something like the Internet. But of course, Madison did have opinions about the importance of free expression and the need to protect such expression from government censorship, so we proceed to discuss how the courts have applied the Founders’ intent – protection of the principleof freedom of speech—to a variety of communication mechanisms Madison could never have contemplated.

On this particular day, however, the student to whom I directed the question (a college junior) looked puzzled, and asked “Who is James Madison?”

It was my introduction to America’s civic literacy deficit.

That incident triggered a question I went on to explore: how widespread is such civic ignorance? What don’t Americans know about our country’s history, philosophy and legal system? The answer, according to the data then available, was: a lot. At the time, for example, only 36% of Americans could name the three branches of government. By last year, that same national survey found the number had slipped to 26%.

Overall, a huge amount of data confirms that most Americans know little or nothing about the Constitution, or about government, economics or science. Most cannot define the terms they routinely employ to embrace or dismiss different systems, like capitalism, socialism and fascism.

Why do I think that informed civic engagement is so important?

Civic literacy (or lack thereof) affects the whole of society. Reasonable levels are especially critical to the maintenance of democratic norms.

We are currently seeing the results when people elected to high office don’t respect those norms, or know anything about the Constitution, or the way government works—or for that matter, what science is or the most basic principles of economics. Such individuals are elected by voters who don’t understand those things, either– who don’t understand what skills governing requires and who are unable to evaluate the performance of the people they elect.

If that isn’t bad enough, over the past quarter century or so, we’ve seen the growth of yet another problem that is largely attributable to low levels of civic literacy: susceptibility to spin, propaganda and so-called “fake news.” When you don’t know what the rules really are, it’s easy to believe hysterical accusations. Did a Court say a cross on government property violated the Establishment Clause? That means Satanists have won, and we’ll have to remove the crosses from our churches! (True story.)

We know that the American public is ignorant—not stupid, just ignorant– but there’s a lot we don’t know about the causes and consequences of this very troubling deficit of civic knowledge:
·      What is the civic deficit? i.e., what is the necessary content/what are the essential skills that make a person “civically literate”?
·      How are civic literacy and civic engagement related? Which comes first? What behaviors beyond voting reflect civic engagement/civic skills?
·      Where, besides some public-school classrooms, are civic skills taught and/or civic information imparted?
·       Is there a relationship between perceived political efficacy and motivation to become civically knowledgeable? (“I can’t make a difference anyway, so why bother?”)

As an old lawyer once told me, there’s really only one legal or political question, and that’s “what do we do?” That’s the question the Center for Civic Literacy is now focusing on.

So—what can any of us do? Let me share a few ideas.

Awhile back, a graduate student and I wrote a short book we called Giving Civics a Sporting Chance. We compared America’s fascination with sports trivia to our lack of civic knowledge. Every weekend, some bar is holding a trivia contest and customers are demonstrating that they know who threw the winning pitch in the 1939 World Series.  Why not hold trivia contests focused on American history, government and the constitution?  (You might generate some local political support if you include questions like “Who’s your city councilor?” or “What does the county coroner do?”)

In Indianapolis, we worked with the public library on a project we called “Electing Our Future”—it might also serve as a template for local efforts. A couple of months before municipal elections, we had panel discussions about the issues winning candidates would face. We didn’t talk about the candidates–we didn’t even invite them– but about the problems we’d expect them to solve and the practical, legal and financial constraints they would face.

One effort that is still ongoing and has been very popular is an adult version of “We the People.” Women4Change worked with the National Center for Civic Literacy to offer one night per week, six-week versions of that very effective civics curriculum.

There is another thing that each of us can do to call attention to the superficiality of American knowledge. When we read a letter to the Editor or a post to a widely-read blog that misstates a Constitutional principle, or incorrectly defines an economic term, or confuses science with religion, we need to respond.

For example: “I noticed that Sally Smith dismissed evolution because it is “just a theory.” But “theory” in science is a technical term, not to be confused with ordinary usage. Scientific theories are supported by evidence that has been tested empirically….” You get the idea. These corrections should be as polite as we can make them, since the people who express uneducated, factually-wrong opinions are likely to resent having “smarty pants elitists” correct them. That said, I think a concerted effort to highlight misinformation and raise awareness would have a positive effect.

The problem isn’t just that Americans are deficient in knowledge about the country’s history, constitution and legal system— the problem is that, so far as I can tell, most Americans have been unconcerned about those deficiencies, and the failure of most schools to teach civics adequately.

One of the reasons our public schools don’t focus on educating future citizens is the philosophical divide among citizens about the purpose of public education. The arguments made by self-styled reformers tend to focus on education as a consumer good; a “good school” is one that imparts skills needed by children who will enter the global marketplace. In the United States, however, public education was originally conceived to be—in Benjamin Barber’s felicitous phrase—constitutive of a public. In an ever-more-diverse polity, where the Constitution and “American creed” are essential elements of our “civic religion” (and frequently the source of the only values we hold in common), a robust civics education is what allows us to “constitute” a polity. It is what makes us Americans.

Marketable skills and STEM skills are important, but so is familiarity with—and ideally, allegiance to– the history and philosophy of America’s approach to self-government. If there is one over-riding lesson we at the Center for Civic Literacy have learned it is that—despite our national fondness for flag waving and our constant, pious references to the Constitution—too few Americans know what the flag stands for, or what the Constitution says.

Ultimately, of course, we have to lobby our legislatures to require more and better history and civics instruction in our schools. When you think about it, Americans don’t pray to the same god, read the same books and newspapers, watch the same television shows, eat the same foods—a lot of us don’t even speak the same language. The only thing that all Americans have in common is a particular philosophy of government and a distinctive set of social values—and when we don’t know anything about that philosophy or those values, we aren’t Americans; we’re just a collection of separate, mutually-suspicious constituencies contending for power.

And most of us understand that encouraging distrust in a bunch of mutually hostile, know-nothing constituencies is highly unlikely to make America great again…

Thank you.

The Danger Zone

Democratic systems vary, but they share certain foundational assumptions. The most important of those is the starting point: We The People are the “deciders.”  Ultimate authority rests with the voters.

In democratic theory, candidates contend for support during election campaigns, voters cast their ballots, and the candidate who garners the most votes wins. (At least if there’s no Electoral College involved).

In order for this process to work, both winners and losers must respect the will of the people.

Losers may disagree with positions endorsed by the winning candidates, and as the “loyal opposition,” they may work in accordance with the rules to defeat the winners’ agenda, but democratic norms require that they acquiesce to the people’s choice.

When that doesn’t happen–when the losers disregard the rules and norms in order to frustrate the choices made by the electorate–governance can no longer be considered either legitimate or democratic.  Political actors who accept authority when they win, but defy the settled norms of democratic behavior when they lose , undermine the public trust and make a mockery of the rule of law.

The visceral reaction to Mitch McConnell’s unprecedented theft of a Supreme Court seat reflected a widespread recognition that this was no ordinary political maneuver–it was the arrogant demonstration of a cheat that he would abide by the rules only when they favored him.

When Republicans in the North Carolina legislature stripped the incoming Democratic governor of powers the office had previously exercised–because they could–it was their middle-finger-to-democracy gesture.

That “in your face” rejection of democratic norms is spreading.

In a newsletter for the Boston Globe, Michael Cohen recently pointed out, “in a normal representative democracy, if you run for office and then lose you let the other party run things for a while. That doesn’t mean a political party can’t oppose those efforts, but it does mean that you have to respect the voters’ decisions.”

That isn’t what is happening in Wisconsin or Michigan.

In these two states, Republican gubernatorial candidates were defeated in this year’s midterm elections. Democrats also won both attorney general races. And now Republicans are refusing to accept the results.

Instead they are trying to use lame-duck sessions – before the Democrats are sworn into office – to weaken the power of the incoming Democrats and put in place policy changes that will benefit Republicans.

Let’s start with Wisconsin, where soon-to-be former governor Scott Walker and his Republican allies in the state legislature have spent the past eight years making a mockery of democracy in the state.  Upon taking office they rammed through a highly controversial measure that stripped collective bargaining rights from the state’s public sector unions. Then they re-wrote legislative maps to give themselves out-sized control of the state government. In the 2018 election, Democrats won 53 percent of the vote, compared to 45 percent for Republicans. Yet, because of gerrymandering, that translates into a 64-36 advantage for Republicans in the state assembly.

But apparently that’s not enough for Republicans. Now they are enacting legislation that would kneecap Democrats once they take office….

For Governor-elect Evers, Republicans would not only force him to enact work requirements for Medicaid, but would also require him to get the legislature’s permission before submitting any request to the federal government to change how federal programs are administered. In effect, Republicans would give themselves a veto over much of what Evers would try to accomplish as governor. Walker has stated publicly that he will sign the bills.

….

Republicans aren’t even being shy about their agenda. In Wisconsin, Republican Senate Majority Leader Scot Fitzgerald defended his party’s actions by saying, “I’m concerned. I think that Governor-elect Evers is going to bring a liberal agenda to Wisconsin.”

He’s right. But of course Evers’s agenda is what Wisconsin voters chose.  To put roadblocks in front of it is to, in effect, say to voters that their choices don’t matter. It’s hard to imagine a statement more contemptible in a democracy than a political leader telling a state’s voters, “only the views of the people who voted for me matter.” But that’s precisely what Fitzgerald and his Republican colleagues are doing.

Changing the rules after they’ve lost the game. Undoing the results of a democratic election because they lost.

This behavior is nothing less than an attack on America and its values.

Originalism

Definitions are important.

For example, I’m perfectly willing to say I believe in God–if God is defined as “the moral impulse.” I really do believe that most people (not Donald Trump, but most people) have an innate sense of fair play (of justice, if you will), and if we dub the moral guidance provided by that sense of justice as “God”– well then, I’m a believer. (If God is a white guy on a throne with a long white beard who watches to see whether I’m naughty or nice, ala Santa, not so much…)

In constitutional argumentation, originalism is a lot like God.

I mentioned in a prior post that I’ve been reading Erwin Chemerinsky’s We the People: a Progressive Reading of the Constitution for the Twenty-First Century. it’s a really great book, and I recommend it highly; it’s accessible, readable, and (seeing as how it’s from Erwin Chemerinsky) erudite.

Chemerinsky doesn’t have much use for originalism as defined by Scalia et al. I particularly enjoyed his reference to an oral argument in a case involving a California law prohibiting sale or rental of violent video games to minors. Scalia was pressing California’s attorney about whether the the law could be reconciled with the “original understanding” of the First Amendment. After a confusing back-and-forth, Justice Alito interrupted, saying “I think what Justice Scalia wants to know is what James Madison thought about video games.”

The reason I loved this anecdote is that it is so close to the way I introduce “original intent” in my classes of non-law-school undergraduate students. I ask them what James Madison thought about porn on the Internet. (These days, I’m just happy when the respondent knows who James Madison was…but that’s a subject for a different post.)

Obviously, Madison never contemplated either technology–that of video games or the Internet. But I would argue that’s not the end of the analysis, nor is it reason to declare the irrelevance of originalism properly defined.

James Madison may not have contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires the courts to protect the principle that government ought not be able to decide which ideas may be communicated.

If, as Chemerinsky demonstrates, it is impossible to define original intent as the Scalia faction would do— as reliance on and limited to what was in the minds of the Founders at the time they drafted the Constitution– and if it is equally if not more unsatisfactory to say that the Constitution simply means what nine people in black robes say it means at any particular point in the nation’s history, then the only reasonable definition of originalism is protection of the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The principles and values that the Founders protected in the Constitution and the Bill of Rights are pretty clear, even if their application in many situations is less so. The only approach to Originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a new technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

It’s the only workable Originalism.

 

 

What We Don’t Know Is Hurting Us

There’s an old saying to the effect that it isn’t what we don’t know that hurts us, it’s what we know that isn’t so.

Misinformation, in other words, is more damaging than ignorance.

I agree–with a crucial caveat. The adage is only true when we are aware of our ignorance–when we recognize what information or skill we lack. As research continues to demonstrate, however, there’s a high correlation between ignorance of a particular subject-matter and ignorance of our own ignorance. (It’s called the Dunning-Kruger effect.)

That’s why lawmakers’ allergy to data and preference for evidence-free policy pronouncements are so maddening.

A while back, I read a column making the point that data is inevitably political. The government collects data in order to inform policy decisions, because in order to address issues, it is essential to understand the facts involved, to have a handle on what we academic types like to call “reality.”

The column that I read (and no longer remember where, or I’d link to it) considered the consequences of the Reagan Administration’s decision to stop collecting data on corporate market share. Without that information, policymakers have no idea how large the largest corporations have become. They lack evidence on the degree to which companies like Amazon, Walmart, et al can dominate a segment of the economy and effectively set the rules for that segment. It’s likely that this lack of data is a significant factor accounting for diminished anti-trust enforcement.

The problem goes well beyond economic data. For a considerable length of time, the United States has been mired in one of the nation’s periodic and damaging anti-intellectual periods, characterized by scorn for expertise and empirical evidence.  (Another troubling manifestation of that scorn is the reported evisceration of Congressional staff–the panels of employees with specialized knowledge that advise Congressional committees and individual Representatives on complicated and technical issues.)

Instead of evidence-based policy, we get faith-based lawmaking. Ideology trumps reality. (And yes, I meant that double entendre…)

Last year’s tax “reform” is a perfect example. It was patterned after Sam Brownback’s experiment in Kansas–an experiment that spectacularly crashed and burned. As NPR reported

In 2012, the Republican governor pushed reforms through the state Legislature that dramatically cut income taxes across the board. Brownback boasted the plan would deliver a “shot of adrenaline” to the Kansas economy.

But the opposite happened.

Revenues shrank, and the economy grew more slowly than in neighboring states and the country as a whole. Kansas’ bond rating plummeted, and the state cut funding to education and infrastructure.

You might think that Kansas’ experience would inform a similar effort at the federal level, that it would at least be taken into account even if it wasn’t considered dispositive, but clearly that didn’t happen.

It’s that same dismissive attitude about “facts” and “evidence” and “data”–not to mention science–that is the largest single impediment to serious efforts to slow the rate of climate change.

Some lawmakers who deny climate change ground their beliefs in religious literalism (making them ‘literally” faith-based), but most do so on the basis of the same free-market ideology that led them to dismiss results in Kansas, and oppose even the most reasonable regulations. (There’s a highly convenient aspect to that ideology, since it keeps campaign contributions flowing…but it would be a mistake to think everyone who subscribes to it does so only as a quid pro quo.)

If the country doesn’t emerge from this “Don’t bother me with the facts” era, we’re in for a world of hurt.

And speaking of literalism, the whole world will hurt.