My research focuses on something I call “Constitutional Culture.” The investigation of “constitutional culture” is considerably broader than legal analysis; it focuses upon the reciprocal relationship between our laws and legal norms and the broader culture within which those norms must be understood.
In other words, I study how constitutional values operate within a very diverse culture, how those values make people from very different backgrounds and beliefs into a single polity. My research has convinced me that widespread civic literacy—an acquaintance with the history and philosophy of our country—is critical to our continued ability to function as Americans.
I am also increasingly convinced that such civic literacy in short supply.Let me share with you the results of a study released just a few days ago by the Oklahoma Council of Public Affairs in observance of Constitution Day. The survey asked high school students questions about the United States. Here are some of those questions, and the percentage 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
How many justices are there on the Supreme Court? 10
Who wrote the Declaration of Independence? 14
What ocean is on the east coast of the United States? 61
What are the two major political parities 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
Who is in charge of the executive branch? 29
This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped our contemporary definitions of public and private, our notions of governmental and personal responsibility, and our conceptions of human rights. They dictate the way we see issues of civic responsibility, and how we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices are what has created our distinctively American culture. Failure to understand and appreciate those initial commitments is failure to understand the world we live in; it is failure to understand the context of our contemporary political and policy issues. Civic ignorance explains a great deal of the craziness and conflict we see around us.
All constitutions are expressions of political theory, efforts to address the most basic question of society—how should people live together? I have explored these themes in most of my publications, and they have been central to my last two books: God and Country: America in Red and Blue; and Distrust, American Style. Those books especially grew out of my efforts to understand why Americans so often seem to occupy different universes.
Actually, it hasn’t only been these last two books. When I was asked to give this lecture, I went back and reviewed much of what I’ve written over the past 15 years or so, and I was struck by the persistence of that one question: How do we live together? My very first book was “What’s a Nice Republican Girl Like Me Doing at the ACLU?” (That was written as the GOP was abandoning its traditional roots and getting more and more…whatever it is the party has become.) It was in that book that I first explored something I called—and still call—“The American Idea.” And the best way I can explain what I do—what I teach and research—is to explain that “American Idea,” because it has been a constant theme throughout my tenure at IUPUI.
My fundamental premise is that America is more an idea than a place.
Ours was the first nation not to be based upon geography, ethnicity or conquest, but upon a theory of social organization. That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. You might argue that America is uniquely situated to thrive in a world where trade and technology are making geography increasingly irrelevant; where travel, immigration and economics are forcing diversification of even the most insular societies.
The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that ought to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality. Understanding them is fundamental to our ability to understand ourselves and to construct a civic and civil society.
I wasn’t suggesting that the founders spoke with one voice, or that they embraced a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, the system they established wasn’t perfect, nor was it sufficient for all time. History and context matter.
Take the issue of “original intent.” There are those who believe that the role of the courts is to identify the founders’ intent and mechanically apply it—nothing more. Such a view of the judicial function arguably misreads history. In any event, it’s impossible. Whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s? And how are we to determine what that intent really was?
More to the point, constitutions are by their nature statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are enunciated. Our inquiry, properly understood, must be to identify the principle or value involved and protect it in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle –protecting expression from government interference—to this new form of communication?
The great debates between the Federalists and Anti-Federalists were about the proper role of government. That debate continues today. While we have enlarged our notion of citizenship since the constitutional convention (we now include women, former slaves and non-landowners) the framework remains the same. The overarching issue remains where to strike the balance between state power and individual autonomy.
The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, how you use your property. Who decides when the state may deprive you of your liberty? How do we balance government’s right to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do. (As I tell my students, the Bill of Rights does not confer rights. We have those rights by virtue of being human. The Bill of Rights was meant to keep government from interfering with them.) Protection of individual liberty was an overriding value, to be circumscribed only when absolutely necessary.
Over the years, the individual rights secured to citizens by the Bill of Rights have come under attack from both the Left and Right. (Libertarians are right—political spectrum not a line but a circle, with authoritarians on both ends.) The Right’s argument is that the U.S. has gone “too far” toward individualism and individual liberties, to the detriment of authority and traditional morals. The Left’s theory is that we’ve gone too far toward individualism and individual autonomy, to the detriment of our sense of community, and the rights of the majority. In both views, the good of the whole (as they define it) must take precedence over the rights of individuals.
That may sound nice, but what is the “common good”? And more importantly, who gets to decide what it is? What are the “rights” of the majority? How do we determine them? When we ask those questions, we immediately see that there are two very different answers possible. In a totally majoritarian system—the system too many of my students think we have—the rights of the majority at any given time are what the majority decides they are. In such a system, the only issue will be one of accuracy and definition: what shall constitute a majority for purposes of legitimizing the use of state power? How can we be certain the votes accurately reflect citizen sentiment? Who shall have the right to vote?
In a truly majoritarian system, voters would have the right to decide what books are printed and sold, which religious practices would be tolerated, how much authority the police could exercise, and so forth. The only limits to government’s power over individuals would be those sanctioned from time to time by the voters, and those limits could be changed at any time by a subsequent vote. A truly majoritarian system would certainly reflect “community values” at any given time. It would also impose those values on those who do not share them. Holders of minority opinions, dissenters from the prevailing wisdom, would have no recognized or enforceable right to be different.
Such a system is precisely what the founders feared: it’s what they meant by “tyranny of the majority.”
The second answer to the question of majority rights is the one chosen by the founders of our republic. In the system they bequeathed us, the rights of the majority are derivative of our individual liberties; the right to participate equally with one’s peers to make those decisions which are properly assigned to majority vote; the right to be protected from those who would threaten our physical safety or otherwise deprive us of social benefits to which we are entitled; the right to have our agreements with each other enforced and our disputes mediated—all without favoritism or bias. And of course, there is the right which Justice Louis Brandeis once called the greatest right conferred by a civilized society—the right to be left alone.
History provides us with plenty of examples of what happens when the “good of the many” is piously invoked to outweigh the rights of individuals. A paraphrase from George Orwell’s Animal Farm sums it up best: Everyone is equal, but some are more equal than others.
Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and whom we should love. We see groups on the political left endorsing “hate speech” legislation and censorship of materials they believe to be offensive to women or African-Americans or others. Both want to use the power of the state to impose “goodness” on the rest of us. The problem is, they want to be the ones who define goodness. If they had even a rudimentary civic education, they would know that under our form of government they are absolutely prohibited from doing so. In our system, individuals have the right to make their own political and moral decisions, even when most other people believe those decisions are wrong.
When people fail to understand that the central issue is the use and abuse of power, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who decides what books you read—not the merits of the books you choose. A lawyer who represents a child molester is not “endorsing” child molestation. He or she is upholding the right of every citizen to the due process of law. An insistence on a woman’s right to choose abortion is not the equivalent of a “pro-abortion” position—many women who oppose abortion nevertheless do not believe that government has the right to make that decision for individual women. An insistence upon freedom of the press most certainly does not translate into approval of anything the press may choose to publish. Voltaire said it best: “I disagree with what you say, but I will defend to the death your right to say it.” The central issue for civil libertarians is the power of the state—or the majority—to compel our behaviors or infringe our liberties. When people do not understand that, our public discourse is impoverished and ultimately unproductive.
Of course, individual rights carry with them civic responsibilities. One reason citizenship was originally restricted to landowners was the founders’ belief that citizenship required a proper understanding of one’s responsibilities, and the elitist notion that only “substantial” folks were prepared to assume the burdens of citizenship.
While the American legal system and the American media frame most issues in terms of the rights involved, the lack of emphasis on responsibilities shouldn’t obscure their importance. Our entire system depends upon the willingness of citizens to exercise responsibility: to display the public morality without which government and society cannot function. Just as the media focuses on crime, rarely commenting on the far more common incidents of lawful behavior, we tend to pay far more attention to social pathologies than we do to the fact that most Americans do continue to demonstrate the values and civic virtues necessary to the maintenance of an open and orderly society.
It is what we do when people don’t meet expectations for responsible citizenship that defines our commitment to civil liberties and the rule of law, and discloses our familiarity or lack thereof with the basic premises of American government.
Unfortunately, too many Americans who don’t know American history or philosophy favor essentially totalitarian responses. The people you see on TV and at town halls spouting anti-government rhetoric are the same ones who demand government fixes for things that offend them.
These are the people who claim parents aren’t monitoring what their kids watching on TV, so the government should ban inappropriate content. They are the people who are convinced that today’s children aren’t getting “proper” religious instruction, so the public schools—government schools—should make them pray. If movies are getting too racy, they demand that the government censor them. And on and on.
Aside from the hypocrisy, these “easy” answers run afoul of our most basic constitutional values. People demanding these measures in the name of “American values” display an appalling ignorance of those very values.
Civic literacy requires an acquaintance with basic constitutional principles. They aren’t mysterious or difficult. As I wrote in that first book,
- There is the value of liberty. Americans believe in our inalienable right to hold our own opinions, to think for ourselves to assemble with our friends, to cast our votes, to pray or not—all free of government interference or coercion.
- There is the value of equality before the law. This is not to be confused with the fuzzy notion that we are all somehow interchangeable. It is not to be confused with the belief held by some religions that all people are equally worthwhile. This is a more limited proposition—the notion that government must apply the same rules to all its citizens, that groups do not have rights, individuals do. It was a radical notion in 1776. It is fundamental to the way we understand ourselves and our society today.
- We value the marketplace of ideas, the supreme importance of our ability to communicate with each other, unfettered by government censorship.
- I said then that we value government legitimacy and the rule of law; I hope we still do, although we’ve come through a depressing and very damaging eight years.
- And I hope we still value the civic virtues that are necessary to the conduct of responsible government, although some of them seem in short supply lately: honesty, courage, kindness, civility, mutual respect and tolerance.
In a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing—these are the core values Americans have historically agreed upon. That agreement is what Americans have in common. They are the values we must teach our children.
Let me just conclude this talk by reading from the afterword of my most recent book, which—among other things—elaborated on the importance of being able to trust our government to be faithful to our constitutional values. Those values are what create e pluribus unum: they allow us to make “one” out of our “many” in this age of dramatically increasing diversity. (As you will see, I’m still harping on the American Idea—I’m sort of a broken record that way.)
“Most countries have gone through periods of turmoil, corruption or worse. I know of none that have escaped episodes of poor—sometimes disastrous—leadership. And as anyone who follows the news knows, democracies are hardly immune; the electoral process is no guarantee that you won’t get leaders who are ill-equipped to govern. All governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based not upon identity but upon covenant. Americans do not share a single ethnicity, religion or race. We never have. We don’t share a worldview. We don’t even fully share a culture. What we do share is a set of values, and when those whom we elect betray those values, we don’t just lose trust. We lose a critical part of what it is that makes us Americans.
Policy prescriptions and ten-point plans are all well and good, but at the end of the day, our public policies must be aligned with and supportive of our most fundamental values, and the people we elect must demonstrate that they understand, respect and live up to those values.
As we have seen, the word “values” means different things to different people. In the wake of the agonizingly close 2004 Presidential election, pundits told us that voters had come out on November 4th to vote for “values.” What they meant by values—opposition to reproductive choice and equal rights for gays and lesbians, and nationalistic jingoism masquerading as patriotism—was the antithesis of the American values most of us really do care about. Let me be quite explicit about what I believe to be genuine American values—values that have been shaped by our constitutional culture, values that are shared by the millions of Americans who have been dismayed and dispirited by the revelations of the past eight years. They are the values that infuse the Declaration of Independence, the Constitution and the Bill of Rights, the values that are absolutely central to the American Idea.
- Americans believe in justice and civil liberties—understood as equal treatment and fair play for all citizens, whether or not they look like us, and whether or not we agree with them or like them or approve of their reading materials, religious beliefs or other life choices.
- Americans believe in the rule of law. And we believe that no one is above the law— most emphatically including those who run our government. We believe the same rules should apply to everyone who is in the same circumstances, that allowing interest groups to “buy” more favorable rules or other special treatment with campaign contributions, political horse-trading or outright bribery is un-American.
- Americans believe in our inalienable right to speak our minds, even when—perhaps especially when—we disagree with the government. We understand that dissent can be the highest form of patriotism, just as mindless affirmation of the choices made by those in power can wreak untold damage on the country. Those who care about America enough to speak out against policies they believe to be wrong or corrupt are not only exercising their rights as citizens, they are discharging their most sacred civic responsibilities.
- Americans believe that when politicians play to the worst of our fears and prejudices, using “wedge issues” to marginalize immigrants, or gays, or blacks, or “east coast liberals” (a time-honored code word for Jews) in the pursuit of political advantage, they are being un-American and immoral.
- Americans believe in the importance of reason, the need for tolerance, and respect for evidence, including scientific evidence. We may go “off the reservation” from time to time, especially when the weight of the evidence points to results we don’t like, but eventually, Americans will place reason and compromise above denial and intransigence in the conduct of our collective affairs.
- Americans believe, to use the language of the nation’s Founders, in “a decent respect for the opinions of mankind” (even European mankind).
- Finally, Americans believe in the true heartland of this country, which is not to be found on a map. The real heartland is made up of all the Americans who struggle every day to provide for their families, dig deep into their pockets to help the less fortunate, and understand their religions to require goodwill and loving kindness. The men and women who make up that heartland understand that self-righteousness is the enemy of righteousness. They know that the way you play the game is more important, in the end, than whether you win or lose. And they know that, in America, the ends don’t justify the means.
Americans’ ability to trust one another depends upon our ability to keep faith with those values.
Life in a liberal democratic polity is never going to be harmonious. Harmony, after all, wasn’t the American Idea. Despite the dreams of the communitarians, we aren’t all going to share the same telos; at most, we will have what John Rawls called an “overlapping consensus.”[i] In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When our divisions and debates are between powerful forces that want to rewrite our most basic rules and citizens without the wherewithal to enforce them, we undermine the American Idea and erode social trust.
At the end of the day, diversity (however we want to define it) is not the problem. And that’s a good thing, because the fact is that increasing diversity is inescapable. The real issue is whether it is too late to restore our institutional infrastructure and make our government trustworthy again, whether we can once again reinvigorate the American Idea and make it work in a brave new world characterized by nearly instantaneous communications, unprecedented human mobility, and the twin challenges of climate change and international terrorism. There are hopeful signs, but the jury is still out.”
John Rawls, Political Liberalism
(Columbia University Press, 1993).