The City And The Constitution

I was asked to speak to participants in the local OASIS program about the interaction of the Constitution with municipal government, and about my experiences during the Hudnut administration. I decided to share it, both as a needed vacation from Trumpism and as a reminder that there used to be decent politicians in both parties…

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When constitutional issues arise, most of us think of the federal government, and especially the Supreme Court. But the Constitution and the Bill of Rights apply to all levels of government, and are enforced by both state and federal courts—it’s what we mean when we talk about “the law of the land.”

There are differences in jurisdiction, of course—we have a federalist system, which means that some areas of the law are left to state and local governments—but those areas have to be consistent with the national Constitution. I am constantly amazed at how many people don’t know anything about federalism—that division of authority between the federal government and state and local governments—or about Separation of Powers or other basic aspects of America’s legal structure.

I really encountered this lack of “civic literacy” when I was at the ACLU. The ACLU defends the Bill of Rights, which is essentially a list of things that government can’t do. The Bill of Rights answers the question: who decides? Who decides what prayer you say, what political beliefs you hold, what books you read? In the United States, citizens get to make those sorts of decisions for ourselves, free of government interference.

Since the Bill of Rights only limits what government can do, the ACLU only sues government. Not only did I discover that a lot of people don’t know that the Bill of Rights only restrains government, I also discovered that a lot of people don’t know what government is.

Originally, the Bill of Rights applied only to the federal government. It wasn’t until passage of the 14th Amendment that states were required to extend the “privileges and immunities” of citizenship to their own residents. After the 14th Amendment was ratified, there was a series of decisions in which the Supreme Court ruled that the Bill of Rights also  limited the authority of state and local government officials.

Evidently, a lot of people haven’t encountered the 14th Amendment: When I was Corporation Counsel, I issued an opinion that the 1st Amendment prohibited the City from doing something—I no longer recall what—and someone wrote an angry letter to the editor that began, “I read the First Amendment, and it says Congress shall make no law…” That’s an excellent example of why just reading the text of the Constitution—especially the text of only one amendment—won’t give you the whole story.

Speaking of stories…I was asked to share some of the highlights—and low points—of my three- year stint as Corporation Counsel (chief lawyer) of the City of Indianapolis, with a focus on how the Constitution and Bill of Rights affect municipal governments.

I was appointed Corporation Counsel by Mayor Bill Hudnut in 1977. To the best of my knowledge, I was the first woman to hold that position in a major metropolitan area, and my first encounter with a constitutional issue was a lesson in both sexism and freedom of the press: Indianapolis still had two newspapers then, and the evening News featured a “Gossip” box on the front page. When my appointment was announced, the Gossip box “item” was something along the lines of: a high-ranking official has appointed his most recent honey to an important position in City Hall. No names, but it wasn’t hard to figure out who they were talking about. (After all, as one newspaper had described me, I was a “divorcee.” We don’t hear that word much these days, fortunately…sounds pretty racy.)

On my second day on the job, I got a call from the U.S. Justice Department. At the time, the City was being sued for a history of race and gender discrimination in the police and fire departments; we ultimately entered into a consent decree, because Mayor Hudnut recognized that history and wanted to correct it. But the suit had just been filed a few months before the call from the Justice Department lawyer. He asked for Dave Frick, my predecessor, who had become Deputy Mayor. Dave’s Secretary explained that he was no longer Corporation Counsel and asked him if he would like to be transferred to the new Corporation Counsel. He said yes—and I picked up the phone and said “May I help you?” He said, “Yes, I’m holding for the new Corporation Counsel.” This was 1977, and there weren’t many women lawyers then; he clearly thought he was talking to a secretary. After a pause, I said “This is the new Corporation Counsel.” He was suitably embarrassed. (On the other hand, he was really easy to deal with after that.)

Within my first couple of months on the job, I confronted a pretty classic First Amendment Religious Liberty issue. (The First Amendment has two religion clauses: the Establishment Clause and the Free Exercise Clause; together, they mandate governmental neutrality in matters of religion). For many years, the City had erected a Nativity scene on Monument Circle at Christmas. Monument Circle was—and is—publicly owned. Erecting a religious display on government property is a violation of the Establishment Clause; it is an endorsement of religion—in this case, the Christian religion. The jurisprudence was very clear, and when the City was threatened with a lawsuit, I advised Hudnut that we would lose such a suit if it were to be brought.

Unlike so many of today’s politicians, Hudnut did not use the conflict as an excuse to grandstand. He could have made points with people who didn’t understand the Constitution by “defending” the display; instead, he used the incident as an opportunity to educate. We sold the nativity scene to the Episcopal Church across the street and they displayed it, still on the Circle, where it was equally prominent and totally Constitutional.

Mayor Hudnut—who had been a Presbyterian Minister before he was elected—took all kinds of heat for “attacking Christianity.”

I think this incident was the first time I realized that some people want their religious symbols on public property because they want government to endorse their particular beliefs. It didn’t matter to these folks that the nativity scene was still on the Circle, still easily viewed: they wanted the City to send a message that their beliefs were favored, that their religion made them “real Americans,” and that people who hold different beliefs should be considered second-class citizens. That message, of course, is precisely what the Establishment Clause forbids.

One of the things that the City’s legal department does is advise committees of the City-County Council when legal questions arise. I still vividly remember being asked to testify about a proposed ordinance to ban Rock concerts from City parks. A local Reverend had persuaded his City-County Counselor to introduce the ordinance, which as I recall was pretty explicit about the reason, which was to protect Indianapolis’ citizens from immoral lyrics. It wasn’t concerns about traffic or noise or other issues that are entirely appropriate for City government to consider.

This minister had brought a busload of his church members with him to this particular committee meeting, and they sat in the public hearing room waving small American flags. It was surreal.

I testified that the ordinance as written would violate the First Amendment’s Free Speech Clause. Freedom of speech requires government to be what lawyers call “content neutral:” government can restrict the time, place and manner of communications, to a degree, but it can’t pick and choose what messages get exchanged. I explained to the Committee (and the audience) that there were a number of things the City could constitutionally control—traffic, noise, sanitation—but that the Constitution would not allow censorship of certain kinds of music based upon disapproval of the messages being conveyed by the lyrics.

When I completed my testimony and turned to leave, the Pastor rose from his seat and yelled at me, “My bible is more important than your Constitution.” (I thought it was interesting that the bible was his and the Constitution was mine…)

Most of the Constitutional issues I dealt with at the City were (fortunately) a lot less “exciting” than that encounter. For example, during my three years in City Hall, City Legal defended a number of what lawyers call Section 1983 cases. Section 1983 is a provision of federal law that allows people to recover attorney’s fees if they win a lawsuit alleging that someone acting on behalf of City government violated their constitutional rights. It’s a very important safeguard, because many—probably most—people whose rights have been violated can’t afford a lawyer. If lawyers know that they will be paid by the city if they are successful, in other words, if they can prove that the City really did violate their clients’ rights, they are more likely to take meritorious cases—and more likely to decline sure losers.

As I noted previously, Mayor Bill, as we called him, was a minister, and sometimes his minister side pressured his Mayor side. For example, he really wanted to close down bookstores that sold sexually explicit books and magazines, and periodically he would suggest some creative—but constitutionally dubious—ways of doing that. I like to think I kept him constitutionally compliant while I was there, but after I left, the City passed a truly bizarre ordinance that tried to sidestep the Free Speech provisions of the First Amendment by defining “pornography” as sex discrimination.

The District Court, the Seventh Circuit and the Supreme Court all saw through that strategy.

The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. Some of you may have seen the story from this year’s 4th of July, when NPR tweeted out the Declaration of Independence, and got hundreds of angry emails from people who thought it was an attack on the President, or “communist propaganda.”

I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

We elect a U.S. senator for how many years? 11%

Who was the first President of the United States? 23%

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.

America is the most diverse country on earth. What we have in common—what makes us Americans—is allegiance to a particular concept of law, a particular approach to self-government. When we don’t know what that approach is, or why our Founders crafted the system we have, we lose what holds us together, what makes us one nation.

To borrow a phrase from the Tweeter-in-Chief: that’s sad.

 

 

 

 

 

 

 

 

 

15 thoughts on “The City And The Constitution

  1. Wow; Sheila, thank you for this blog. It doesn’t really give us a vacation from Trumpism because emphasizing the fact that there used to be two decent parties, one of them Republican, shows how far Trumpism has separated the Republican party from decency.

    When I began with the City of Indianapolis in 1972, under Mayor Richard Lugar, I was 34 year old high school dropout (no GED at that time), mother of five children going through a divorce and had never worked in an office before. I began in the Traffic Division of the Indianapolis Police Department as a clerk typist; but even in that lowly position with no information regarding office or governmental procedures, I was appalled at the blatant racism, sexism, nepotism, political patronage and the required 2% “donation” of our paychecks, in cash, by the end of the day on payday. I worried about my level of being unqualified (a refresher typing class at Howe night school) but my worries were unfounded. One of the other clerk-typists was an older lady who reported she needed her typewriter repaired because it would only type in capital letters. Lt. Gailbrith pressed the “caps lock” key and repaired it for her. I had to raise my right had before my local precinct committeeman and swear an oath, then sign a document, to work for and support the Republican party to be allowed to work for the city. I was TOLD where and when to go to work for the Reelect Nixon presidential campaign.

    Mayor Bill Hudnut changed all of that; you were one of the first appointees moving away from the blatant sexism in hiring and advancement policies. Your words today have pointed out many of the inside government changes brought about by Mayor Bill Hudnut which this city was never aware of. They viewed the beginning of outward progress and modernization of this city and the reason our Mayor Bill served four terms, as total of 16 years, as Mayor. He was willing to admit his lack of knowledge and learn what he didn’t know or fully understand; such as the removal of Christian religious displays on the Circle during the holidays.

    “The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. ”

    When the above copied and pasted statement from the blog today applies to the highest government officials in this country – including the most powerful political position on earth – it returns our thoughts to Trumpism and the insanity which Congress allows to continue unabated today. A very small handful of Republicans in power have spoken out, business leaders have fled the obviously sinking ship of the Trump administration, a beautiful young woman who was marching for the civil and human rights for all was murdered by an American terrorist on that Charlottesville, VA, public street on Saturday…and the insanity in the White House continues. Trump left Trump Tower yesterday after the CEO fracas, which had been surrounded by huge white trash trucks parked end to end around the entire block in New York City, protecting him from “his” public, to return to his privately owned golf course. Another few rounds of golf to escape his self-made insane and terrifying conditions in America today…or is he safer there?

    Mayor Bill Hudnut’s City Government was systematically destroyed by Steve Goldsmith….I WATCHED THE BEGINNING OF THE DECLINE FROM INSIDE. If we still had Republicans the caliber of Mayor Hudnut; the GOP would never have allowed even a hint of nominating Trump or most of those 17 presidential nominee hopefuls. Gov. Kasich appeared to be the one intelligent, politically educated and qualified, humanitarian on “their side” and he was quickly forced out. He offered at least the possibility of a return to a decent Republican party foundation. Will we – can we – find a way to return to a decent two-party system?

  2. How interesting that the questions the students were asked all appear on naturalization tests for new U.S. citizens.

  3. I think what bothers me most about the amazing lack of knowledge about our government is the fact that it doesn’t bother the people who can’t answer those questions. They should be ashamed of themselves.

  4. The lack of civic literacy in this country is appalling, and certainly a significant factor in our current troubles. Most of us need, at the very least, a refresher course in civics, but that isn’t likely to happen. I learned a few things myself just from reading your post today, so thank you, Sheila. And thank you JoAnn Green for your comments. How appropriate that “…Trump Tower…had been surrounded by huge white trash trucks parked end to end around the entire block in New York City, protecting him from “his” public”. Yes, a ring of huge white trash trucks as security for 45 is perfect, simply perfect. Full of stinking, fetid trash on a hot day, I hope.

  5. thanks, im always looking to better converse with people who are, not informed. my view from experience in my blue collar world, i can safely say, havent a clue…we wonder why people dont vote, or are intimidated by even registering. im on the phone to order parts, talk to brokers, get my cell or wifi issues resolved( imagine that) and ill lead into conversation about the present wage and disparities in the working class.( my forte) 9 out of ten havent a clue, they mearly accept the country as it is, and dont even listen to the news. if we are to remain a democracy, we need the public schools to teach,what citizenship is. the basic pricipals of why, we are a demoracy, and we need them more than ever to support this democracy now, or lose it… mentorship my friends. this days article here is a perfect example to use to start a conversation. and we need more… thanks, made my day….

  6. Note 1:
    If one of the two political parties in the United States believes in a trickle down economic policy, then we do not, and never did, have a system of two “decent” parties.

    Note 2:
    I was a C-minus student in a central Indiana high school (Walnut Grove, which does not exist today) of only 100 students. But I recall studying the Constitution in every grade after the 6th grade, and having to pass a rigorous Government class as a senior. My class had 24 students at graduation, a few of them worse students than was I. But…

    Though all of my surviving classmates are almost 80 years old, I would wager that 80% or 90% of us still would know the answers to most of those questions about the Constitution. Why?

    Because the school was small.
    Because the staff cared that we learn certain things. Because our parents supported the staff.
    Because we could not get lost (become anonymous) in such a small population.
    Because it ain’t that hard.
    Because our parents still believed that learning stuff (education) would be our salvation.
    Because our mothers were more interested in our behavior than in some “larger” cause, like women’s liberation.
    Because our parents and our educators still believed that a spanking damaged a child much less than messing with and manipulating his or her psyche.
    Because, as deprived of cultural amenities as we rural children were, we were not deprived of hope.
    Because neither political party had yet instituted an organized campaign to keep us ignorant and promote the idea that our Constitution and the Democracy it fostered was flawed, or somehow an impediment to a Royal style authoritarian government.

  7. I wish I had a profound statement but don’t. All I can think of is Trump and his support of Nazis. What will it take? Also Greg Abbott and other governors who want to have a Constitutional Convention.

  8. Here’s the good news. While the ignorance levels soar among us we are also highly entertained. We have a screen for every purpose but the purpose that makes the most money for those who feed the screen is anti-education – the sucking of knowledge out of, and the backfilling with unabashed drivel into, American craniums.

    Democracy and freedom are earned and we’ve collectively decide not to invest. We’ll just take whatever and, oh, excuse me, The Bachelorette is on.

    Is the Trump era the absolute low that recovering addicts say is the genesis of recovery?

    We’ll see. It’s hard to imagine it’s not as low as it’s possible to go.

  9. I find it ironic that many adults cry out for their children to be educated about civics, government, etc. Must all learning emanate from a schoolroom? Khizr Khan, father of a fallen US soldier, and an IMMIGRANT, who carries a copy of the Constitution, is a model for all adults/parents who desire to be an example for their children.

    You can get a free copy of our Constitution and Declaration of Independence here: https://www.googleadservices.com/pagead/aclk?sa=L&ai=DChcSEwi-o56n097VAhWEt8AKHSsuAGQYABAAGgJpbQ&ohost=www.google.com&cid=CAESEeD2WEEpt2aPVSF2UZaQ89Xw&sig=AOD64_29oVK2shcy4Jz38Pm6YfLINh84Lw&q=&ved=0ahUKEwi6nZin097VAhXh54MKHccdBdsQ0QwIJg&adurl=
    Or take a free course: Constitution 101

    Education does not stop at the threshold to any school, college or university. It is up to each of us to be informed about our country, its foundation, and how it runs. And if we are not informed, then WE are responsible for educating ourselves and quite possibly the children in our villages as well.

    I will be heading back to my college alma mater this Fall for my 40th class reunion. However, that was my introduction, not the finale, to a lifetime of learning that continues to this day. And, insofar as I am able, will continue to the day I pass from this mortal coil.

    My being informed and knowledgeable lies at my own feet and is not at the cause and effect of anyone else–not my parents, not my teachers and professors, not my faith leaders, and not even my government. It is my duty, as a citizen of this country and community, to seek and learn that which affects me and all those about whom I care.

  10. I took a two hour course at IU long ago in my minor of political science before going to law school called “Government Regulation of Business” which I have since renamed “Business Regulation of Government” which, along with such atrocities as the Texas School Board’s removal of civics from the state’s high school curriculum and de-emphasis of the humanities in general may help explain our ignorance of constitutional law. The course I took was during New Deal days and may have been appropriate for its time, but with the invasion of corporate privatization into every facet of our society it is not a description of today’s realities at all, and the corporate pretense that government is the big bad wolf fueled by corporate propaganda has had the desired effect. The idea is apparently to “keep ’em dumb” so that they are more easily manipulated both politically and economically, and that is working, too. Exhibit A > the election of Donald J. Trump.

  11. Very well explained Professor. As a once-upon-a-time Social Studies teacher who taught government (civics), history, and geography, who ‘grew-up’ to become a federal government attorney, I appreciate the importance and value of your message. I find it interesting that the questions the students were asked all appear on naturalization tests for new U.S. citizens. I also found it true that many adults, born in this country and educated through our school systems can’t answer them correctly either, and don’t understand basic civics. Education is key. Yet, in today’s world of fast-paced techological advancement and change, understanding the govrnment, law, and how our system works (or is supposed to work) gets lost in the shuffle.

  12. I like it that they thought you were someone’s “honey”. We know it’s really not a compliment, but it’s funny now. Now you are the “honey” of those who push for civic literacy and against Trumpism and all it stands for. Thanks, Honey!

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