Tag Archives: Constitution Day

Constitution Day

This year, I was asked to give a Constitution Day lecture at Xavier University. This is what I said. (Warning: this is long, and I’ve said a lot of it before…)

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Does Civic Ignorance Really Matter?

The title of this talk is a question: does civic ignorance matter? It will not come as a surprise to you that I think it does—that I believe the consequences of living in a system you don’t understand are negative not just for the health and stability of America’s democratic institutions, but for individuals. After all, if you don’t know how your government works, or who does what, you are at a decided disadvantage when you need to negotiate the system. (If you take your zoning problem to your Congressman, or your Social Security problem to your Mayor, you’re going to waste a lot of time.)

Today, however, I want to focus on the ways in which low civic literacy harms the nation, and talk a bit about what you need to know in order to be an informed voter or even better, an involved civic activist.

Let me begin with an observation. What we call “political culture”–including the public conversations that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And in case you didn’t notice, I’m old. There are lots of theories about what has led us to this rather unfortunate place—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social change—and during Q and A, we can talk about the different ways those elements and others contribute to the political nastiness we see all around us. But I want to begin our conversation by considering a different villain.

I want to suggest that our current inability to engage in productive civic conversation is largely an outgrowth of declining trust in our  social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are to make our democracy work—but in order to trust government, we have to understand what it is and isn’t supposed to do—we have to understand how the people we elect are supposed to behave. We need a common, basic understanding of what our particular Constitutional system requires.

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about today.

I study how Constitutional values apply within our increasingly diverse culture, the ways in which constitutional principles connect people who have very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other and to our ability to function as Americans, rather than as members of disconnected tribes competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply.

Let me share a story that may illustrate my concern. When I teach Law and Public Affairs, I begin with the structure—the architecture–of our particular legal framework, how that framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how the Founders’ beliefs about freedom of expression should guide today’s courts when they are faced with efforts to censor communication mediums the founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss this as anecdotal, to consider that student an outlier–but let me share with you just a tiny fraction of available research. For several years, around Constitution Day, the Annenberg Center has conducted surveys measuring what the public knows about the Constitution. This year, more than a third of those surveyed (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could name all three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them.

A few years ago, the Oklahoma Council of Public Affairs asked high school students in that state some basic questions about American government. Here are just 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%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

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

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

Other research tells us that fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. It goes on and on–there’s much more data, all depressing.

And it matters.

If you think about it, the choices originally made in the design of our Constitution have shaped America’s culture. Those choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They have framed the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial Constitutional choices created a distinctively American worldview.  We don’t have to agree with all of those choices, but if we don’t understand what they were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are.

That American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace 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, we all recognize that the system they established wasn’t perfect, nor was it sufficient for all time.

Take that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. Such a view of the judicial function arguably misreads both history and the founders’ expressed intent. In any event, it’s impossible. We can’t think like people who lived in 1787. And whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s?

More to the point, constitutions are by definition statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are endorsed. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities 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 James Madison enunciated –the importance of protecting citizens’ communication from government censorship—to forms of communication Madison could never have imagined?

The great debates between the Federalists and Anti-Federalists were about the proper role of government. We are still having that debate. We have enlarged our notion of citizenship since the constitutional convention to include women, former slaves and non-landowners, but the framework remains the same. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty? How do we balance government’s duty 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 give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government—not your boss or your mother– from infringing upon those natural rights.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and who we should be permitted to love. We see groups on the political left shutting down speech with which they disagree, and advocating censorship of materials they find offensive. Both groups want to use the power of government to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that the Constitution absolutely prohibits them from doing so. In our system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong.

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment—the definition that was embraced by America’s Founders– is sometimes called the Libertarian Principle: it’s the principle that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others.

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But we can’t take the position that “Freedom is for me, but not for you.”

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, 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. You get to decide what God you worship, or whether you worship at all; government doesn’t get to make that decision for you.

The central issue for civil libertarians is the power of government—or popular majorities working through government—to compel individual behaviors or infringe personal liberties. When people don’t understand that, when they don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether this podium is a table or a chair.

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 upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our government doesn’t function properly. Right now, America is facing some very troubling attacks on essential democratic institutions, and those attacks are undermining public trust in government.

Let’s begin with the assault on the most basic premise of self-government in democratic systems: the value of your vote. There are a number of ways politicians in both parties suppress voter turnout, but the single greatest threat to the value of your vote is gerrymandering.

Today, thanks to partisan redistricting, what we call gerrymandering, only one out of twenty Americans lives in a genuinely competitive Congressional District.

Think about that for a minute.

America has become a country where—as Common Cause puts it—legislators are choosing their voters rather than the other way around.

You probably know how gerrymandering works; after each census, state legislatures draw new legislative and Congressional districts to “even up” the number of voters in each district. The party that controls the legislature gets to control the process, and its goal is to draw as many “safe” seats as possible–more for the party in power, of course, but also for the minority party, because in order to keep control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. Legislators of both parties have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence! —but it was pretty hit or miss until computers came along to make the process far, far more precise.

Neighborhoods, cities, towns–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t been voting to the polls, there would be far fewer safe seats.)

Some of the results of this partisan process are obvious:

Safe districts create unresponsive legislators. If you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant. Safe seats allow politicians to scuttle popular measures without fear of retribution.

These are a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine government legitimacy and are inconsistent with democratic self-government.

First of all, lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote?

It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate or sacrificial lamb who offers no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.

We hear a lot about voter apathy, as if it were a moral deficiency. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to move in down the street! Rational people save their efforts for places where those efforts can actually make a difference, and thanks to the increasing lack of electoral competitiveness, those places often do not include the voting booth.

Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current toxic political discourse. When a district is safe for one party, the only realistic way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is effectively the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most extreme elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side. Then we wonder why they can’t compromise and get the people’s business done!

Until and unless we eliminate gerrymandering, whoever we send to Washington will be stymied by the gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the eligible voters in the district?

This year, the United States Supreme Court will hear an enormously important case: Gill v.Whitford. The Court has previously ruled racial gerrymandering—districts purposely drawn to disenfranchise members of minority groups—unconstitutional, but it has yet to strike down partisan gerrymandering, because the Justices haven’t had a test, a formula that they could rely on to show that districts were intentionally drawn to disadvantage the other party.  A couple of professors have developed such a test, and in a Wisconsin case, a three-judge federal panel applied that test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.

If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation. But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.

Gerrymandering is what we call a systemic issue, and we Americans aren’t very good at recognizing the importance of systems. We’ve recently become more aware of the way the Electoral College works, but only because in two of the last four elections, the person who won the Presidency lost the popular vote. In the wake of Citizens United, people are beginning to understand how special interests with lots of money can undermine democracy. And in the wake of Charlottesville, we can see what happens when we fail to address and reject the systemic racism that too many people have accommodated for too many years.

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 different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call 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 as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust needed to make our democratic institutions work.

So—to answer the question I asked at the beginning of this talk, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without that shared ground—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we can’t repair our broken government.

My generation has failed yours. It will be up to you and your peers to reclaim, revitalize and restore the American Idea—to make this the country we like to believe it is: one nation, with liberty and equal justice for everyone.

We have a long way to go.

Thank you.

Happy Constitution Day

September 17th is Constitution Day–an appropriate time to consider how well Americans understand that important document.

Diana Owen is a widely respected professor at Georgetown University. She recently fielded a survey intended to measure public agreement with the basic ideas of the Declaration of Independence and the Constitution. Questions were posed in “everyday” terms and did not identify their sources.

A press release from the Center for Civic Education, reporting on the research, was titled “Survey Reveals Americans Do Not Know Much About the Constitution, But Support Its Basic Ideas.”

I guess that support should comfort us, although the widespread ignorance of our most basic legal framework sure doesn’t.

Today, the Center for Civic Education, in cooperation with Professor Diana Owen of Georgetown University, released the results of a Constitution Day survey that found that only 14 percent of Americans think they know a lot about the Declaration of Independence and the U.S. Constitution. The survey indicated that although Americans might not be well-informed about these documents, there is widespread agreement on many of the basic ideas they contain that transcends party affiliation, political ideology and demographics. Survey items include basic ideas in the documents without identifying their sources.

Some of the survey’s key findings:

  •  Only 14 percent of Americans think they know a lot about the Declaration of Independence and the Constitution and 22 percent indicate that they know very little or nothing about them. Furthermore, 64 percent say they know some things about these documents. Overall, 86 percent of respondents are aware that they are not well-informed regarding the foundational documents.
  • Although 86 percent of respondents are not well-informed about these documents, the vast majority support the basic ideas and goals of American government in the Declaration of Independence. For example, a large majority (92 percent) believe it is a responsibility of government to ensure political equality and 86 percent believe it is a responsibility of government to further the right to the pursuit of happiness by providing equal educational opportunities for all students.
  • Large majorities of Americans support the establishment of justice (78 percent) and promotion of the general welfare (75 percent), which are among the six purposes of government set forth in the Preamble to the Constitution, even when party affiliation, political ideology and demographics are taken into account.
  • More than 80 percent of Americans support elements of the Constitution and its amendments that protect the rights to freedom of belief and expression; the protections of due process of law for the rights to life, liberty and property; and political equality.
  • Significant majorities of Americans think that government is doing a good job protecting such rights as freedom of belief and expression.

I suspect that much of the support for these broad principles, however heartfelt, is superficial; for example, virtually all Americans support “liberty,” but different constituencies have very different definitions of what genuine liberty looks like. (Is it the “liberty” to refuse to bake cakes for gay couples?)

A majority of respondents (78 percent) agreed that a main purpose of government should be to promote the welfare of all citizens, although only 30 percent think that government is doing a good job of that. (Unsurprisingly, Republicans (35 percent) were more inclined than Democrats (29 percent) and Independents (26 percent) to feel that the government’s promotion of the general welfare is adequate.) A majority recognized that the benefits and burdens of society–employment opportunities, educational opportunities and income and taxation– are not distributed fairly (60 percent).

Interestingly, nearly half of all respondents also recognized that Americans are not treated equally under the law today.

Charles Quigley, executive director of the Center for Civic Education, stated, “The good news is that the social contract is largely intact as reflected by substantial agreement among the people about the central purposes government should serve despite what appears in daily media reports to be a high level of polarization and unwillingness of opposing parties to enter into civil dialogue, negotiation and compromise….

“It is encouraging to note that the survey revealed that the greater respondents’ knowledge of the Constitution, the greater the acceptance of its basic ideas. This clearly points to the need to implement effective programs in schools and universities as well as programs for adults that educate people about the principles and values embedded in our founding documents. (emphasis added)

The unanswered–perhaps unanswerable–question is: if knowledge of the Constitution diminishes further, will we lose our already questionable ability to function as a cohesive society?

Happy Constitution Day…..

Hopeful Signs

On Thursday, I travelled to North Manchester, Indiana, to deliver the Constitution Day lecture at Manchester University, and I am pleased to report that the students I met were bright, engaged, and determined to make this country work again. (Granted, the ones who attend events of this sort tend to be self-selected–this lecture wasn’t required.)

I always want to apologize to young people for the mess my generation is leaving them, but they may be up to the challenge. Fingers crossed.

Anyway–I’m posting my talk below.

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The title of this talk is “Civic Literacy, Political Discourse and the Constitution.” The obvious question is: what do those things have to do with each other?

Let me begin with an observation; what we call the “political culture,”– the public conversation that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And I’m old. There are lots of theories about what has led us to this rather unfortunate place—from gerrymandering to tribalism to rapid social change—and during Q and A, we can talk about the way those elements and others have contributed to the political nastiness we see all around us. But I want to talk about a different villain. I think our inability to engage in productive civic conversation is largely an outgrowth of our loss of trust in our common social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are to make our democracy work—but in order to trust government, we have to understand what it is actually supposed to do, and how those we elect are supposed to behave. We need a common understanding of what our constitution requires.  

Think about it: if I say this podium is a table, and you say it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where people of good will can come to different conclusions about what the constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about today.

I study how constitutional values apply within our very diverse culture, how constitutional principles connect people with very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other—to function as Americans, rather than as disconnected groups of people competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply. 

Let me share a story that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how Madison’s beliefs about freedom of expression should guide courts faced with contemporary efforts to censor the internet. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss this as anecdotal–but let me share with you just a tiny fraction of available research. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about American government. Here are some 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%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

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

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

Only 36 percent of the American public can name the three branches of government. Fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. There’s much, much more. 

And it matters.

If you think about it, the choices originally made in the design of our constitution have shaped the way we define what is public and what is private, our beliefs about governmental and personal responsibility, and our conceptions of human rights. They frame the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview.  If we don’t understand what those initial decisions were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but upon an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. The American idea should make us uniquely situated to thrive in a modern world where travel, immigration and economics are forcing diversification of even the most insular societies, because it based citizenship on behavior rather than identity—on what you do rather than who you are.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace 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 that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. Such a view of the judicial function arguably misreads both history and the founders’ expressed intent. 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 supposed to know what they were thinking?

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 the founders wanted to protect, and protect it to the best of our abilities 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 James Madison enunciated –the importance of protecting free expression from government censorship—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. We have enlarged our notion of citizenship since the constitutional convention to include women, former slaves and non-landowners, but the framework remains the same. The overarching issue remains where to strike the balance between state power and individual liberty. 

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may deprive you of your liberty? How do we balance government’s duty 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 give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government from interfering with those natural rights.

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 gays or others. Both groups 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 get to define goodness. If they had even a rudimentary civic education, they would know that under the Constitution 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. 

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment is sometimes called the Libertarian Principle: the principle that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others. 

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But equality before the law means we can’t take the position that “Freedom is for me, but not for you.”   

We talk a lot about the rights of the individual, but 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 Americans think we have—the rights of the majority at any given time are what the majority decides they are. In that kind of system, the only issue will be one of accuracy and definition: How can we be certain the votes accurately reflect citizen sentiment? Who has 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 approved 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.

That sort of system is precisely what the founders feared: it’s a system that allows the majority to oppress those who are different or who hold different opinions or beliefs. It is what the founders meant by “tyranny of the majority,” and it isn’t the system the founders bequeathed us.

Under our Constitution, the rights of the majority are restrained by the operation of the Bill of Rights. The majority cannot use government to prescribe your prayer, to dictate your reading material, to arrest you without probable cause, or to treat you differently than your neighbor simply because you belong to a disfavored group. 

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, 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. An insistence on a woman’s right to terminate her pregnancy 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 on freedom of the press certainly doesn’t translate into approval of anything the press may choose to publish. A lawyer who represents a murderer is not “endorsing” murder. He or she is upholding the right of every citizen to the due process of law.

The central issue of civil liberties is the power of government—or the majority, working through government—to compel individual behaviors or infringe personal liberties. When people don’t understand that, when they don’t understand when government is empowered to impose rules and when it isn’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether this podium is a table or a chair. 

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—it is more important than ever that Americans understand their history and their governing philosophy. Our constitutional values are ultimately all that we Americans have in common.  

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 upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. To put it another way, our ability to trust one another and our government ultimately depends upon our ability to keep that government true to our fundamental values, and we can’t do that if we don’t know what those values are or where they came from.

 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 what I call 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 we allow powerful partisans to rewrite our history and distort the rule of law, we undermine the American Idea and erode the social trust needed to make our democratic institutions work.

So—to answer the question I asked at the beginning of this talk, civic literacy is knowledge of America’s history and constitutional system—and it is also the language through which we engage in productive discussion and debate about the issues that face us—the common ground upon which we meet as equal citizens. Without that shared ground, without civic literacy—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we cannot sustain the nation.

And right now, civic literacy is in very short supply.

Thank you.

 

 

Constitution Day–And Other Public Service Announcements

September 17th is Constitution Day.

Bet you didn’t know that, because it hasn’t gotten very much attention. In 2004, Congress passed a law requiring that any school receiving federal funds of any kind provide educational programming on the significance of the signing of the Constitution.

Public school systems also have an obligation to mark the day, but many of them evidently struggle to find appropriate speakers and/or materials.

Fear not! The ACLU to the rescue!

The ACLU of Indiana will send trained volunteers into classrooms in central Indiana. (If you are an educator who wants to have this programming in your classroom this year, you can sign up on the organization’s website.) You can also download all sorts of helpful things–the Constitution, study guides and other materials, a classroom PowerPoint presentation and a wide variety of online resources, including games, curriculum, and videos.

As the website says, nothing is more important to our democracy than improving civic literacy. So spread the word.

Okay–so you aren’t a teacher, and you don’t need help marking Constitution Day.

If you live Indianapolis and feel the need to know more about the city and how it works before November’s municipal elections, have we got a deal for you!

The Center for Civic Literacy, the League of Women Voters, the Indianapolis Chamber of Commerce, the Urban League, the Indianapolis Bar Foundation, the Greater Indianapolis Progress Committee, the Indianapolis Neighborhood Resource Center, NUVO, WFYI, and several other civic organizations are working with the Indianapolis Public Library to sponsor three forums to be held at Central Library. They’re free and open to the public. You can learn more–and register to attend one or all of them– here.

Have you always wondered what a municipal corporation is? How the City-County Council works? Who pays taxes and who doesn’t? What our most pressing problems are? Where we see our City in 2020? Come find the answers to these questions and many others! Forums will be held on September 21st, October 6th and October 20th.

The series is called “Electing Our Future: What You Need to Know about Indianapolis Government In Order to Cast an Informed Vote.”

No politics, no spin, just basic information that will help you evaluate the priorities and capacities of the candidates for Mayor and Council who are asking for your vote.

See you there!

 

Hate to be a Broken Record, but….

This morning, the American Constitution Society blog referenced a recent report from the Associated Press:

“The Associated Press has provided new details about a push by the nation’s largest Tea Party umbrella group to teach the Constitution in public schools using materials from an organization that promotes the Constitution as a divinely inspired document.

As originally reported by Mother Jones, the Tea Party Patriots are encouraging public schools to participate in “Constitution Week” in September by utilizing teaching materials from the National Center for Constitutional Studies, a group that ACS Executive Director Caroline Fredrickson called so outside the mainstream that even the conservative Federalist Society would object to its materials.

Mother Jones’ Stephanie Mencimer participated in a daylong seminar with NCCS last year, and reported:

If its public school curriculum resembles anything like what I witnessed, it has no place in the nation’s classrooms. Among other things, NCCS uses materials written by Skousen suggesting that Anglo-Saxons are descended from a lost tribe of Israel; Skousen claimed this meant the Constitution may have been inspired by God, who intended for America to be a Christian nation. The very same bogus history has been perpetuated by the white supremacist movement.”

When the public schools fail to teach real history–when most “social studies” classes are taught by people hired for their ability to be athletic coaches rather than their ability to teach American history or the constitutional architecture–students are defenseless against this sort of propaganda.

Here’s a proposal for those of you reading this. Ask the next three teenagers you encounter to answer a couple of these questions: what was the Enlightenment? What are checks and balances?  What does the Establishment Clause do? How did the 14th Amendment change the Constitution?

My guess is the results of such an experiment wouldn’t be very pretty.