Tag Archives: Constitution

Proving Woodward’s Point

As I said yesterday, anyone who has watched this deeply dysfunctional President has come to the same conclusions Woodward attributes to Trump’s staff. But thanks to the very low levels of civic literacy in this country, it may not be apparent to everyone how profoundly his proposed actions violate the most basic of our constitutional premises.

A couple of examples from the Washington Post:

President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

“I don’t know why they don’t take care of a situation like that,” Trump said. “I think it’s embarrassing for the country to allow protesters. You don’t even know what side the protesters are on.”

I rather doubt that the Daily Caller’s reporter asked the appropriate question: Are you aware that the First Amendment to the Constitution specifically protects the ability of citizens to “petition their government for redress of grievances?” (The Daily Caller is a  website founded by conservative pundit Tucker Carlson and Neil Patel, former adviser to former Vice President Dick Cheney. Hence my assumption the reporter didn’t confront the President.)

It doesn’t really matter. Since Trump has given exactly zero evidence of ever having encountered the Constitution–let alone understanding it–I’m sure a reference to the First Amendment would have fallen on deaf ears.

In another Post column, David Von Drehle addressed the President’s utter contempt for the rule of law.

Here’s a question I never expected to ask:

Should law enforcement officials ignore crimes committed by their friends and associates?

I grew up thinking the answer was a simple no. The figure of Justice, with her scales in one hand and her sword in the other, wears a blindfold to symbolize her impartiality. Carved in stone over the doors of the Supreme Court are the words: Equal Justice Under Law.

As I got older and saw a few things, I came to understand that justice, as meted out by humans, is imperfect. Yet the principle of the matter — the goal for which we should aim and the standard by which we should measure — remains the same. Impartiality. Equality. Fairness.

So why am I asking?

On Labor Day, the president of the United States used Twitter to express precisely the opposite idea.

Von Drehle was referring to Trump’s angry eruption at the indictment of “two very popular Republican Congressmen.” He clearly believes that the role of the Justice Department is political, that since both he and Sessions are Republican, the department should protect Republican wrongdoing.

I don’t know what’s worse–that Trump would have such an uniformed view of what “law” means, or that he was willing to tweet his ignorance for the whole world to see. As Von Drehle concluded,

Nineteenth-century orator Robert Green Ingersoll once wrote, “Nothing discloses real character like the use of power.” In his pity for Paul Manafort, convicted tax cheat; in his hatred for truth-telling “rats” and “flippers”; and now in his assertion that the law should exempt his political allies, Donald J. Trump is disclosing his.

Sixty percent of us, plus or minus, noticed.

The Real Constitutional Crisis

As anyone who reads my blogs and columns–or who has ever been a student in one of my classes–can attest, I have respect bordering on reverence for the American Constitution. But it is becoming painfully clear that some of the governing mechanisms required by that founding document no longer serve us. The Constitution was crafted, after all, to address the concerns of a very different age.

The dysfunctions of the system have been accelerating for some time, culminating in today’s parody of responsible government.

A recent article in Commentary Magazine focused on the undeniable fact that Congress is broken;

It is hard to avoid attributing every dysfunction of the moment to Donald Trump’s peculiar mix of reckless talk and often feckless action. But judged on a scale of institutional breakdown, the presidency—even this presidency—is not our biggest problem….

The budget process has never been so hobbled. Not only did we come close to an unprecedented government shutdown during single-party control of Congress and the presidency, but this year has also marked the first time in the four-plus decades since the modern budget process was created that neither chamber has even considered a budget resolution.

And the trouble didn’t start in just the past few years. Presidential hyperactivity in recent decades has masked a rising tide of dysfunction—giving us policy action to observe and debate while obscuring the disorder that was overtaking our core constitutional infrastructure. It kept us from facing what should be an unavoidable fact: Congress is broken.

As the author points out, whatever measure you apply–legislation passed, public approval, member satisfaction, even just committee work or each house’s ability to live by its own rules–will lead you to the same conclusion. And while there are many reasons for the institution’s abject failure to perform, the Constitutional language is among them.

The Constitution gives the Congress powers but not responsibilities. The president is required to execute the laws and tasked with responding to changing world events on the country’s behalf. The courts have to consider cases and controversies put before them and apply the laws accordingly. But while the general scope and reach of the Congress’s authorities are laid out in Article I, the institution is not really told what it must do within that scope. That’s because the assumption was that Congress would naturally seek to control things and run as far and as hard in pursuit of power as the Constitution allowed, so that only boundaries were needed.

As everyone who has studied the Constitutional Convention knows, the Framers worried most about the legislature (the “most dangerous branch”), and the prospect that it would run rampant.

Today’s Congress simply defies that expectation. It suffers from a malady the framers never quite imagined when they thought about politics: a shortage of ambition. Members are certainly eager to retain their offices, but they seem oddly indifferent to using those offices.

The article goes on, and I encourage you to click through and read it, but even though I think much of the analysis is accurate, I also think it is incomplete. The fecklessness of our current political class is also fostered by other structural defects required or permitted by the Constitution: the Electoral College and the primary authority of state governments for elections and redistricting, to name just two.

The problem is, if Americans were to engage in a redesign of the Constitution–if efforts to hold another Constitutional Convention (an effort currently underway) were to succeed–it is almost certain that the damage done would vastly outweigh any improvements. The people most eager to rewrite our national charter are precisely the people who shouldn’t be allowed near it. It isn’t just the theocrats and the “states rights” bigots, worrisome as they are, but well-meaning folks who have very limited understandings of economic and social realities–the “balanced budget” advocates and libertarian opponents of regulation and social welfare programs, among others.

Legal structures are inevitably reflective of deep-seated cultural assumptions, and cultural changes come slowly. Until such time as an effort to modernize the Constitution can be undertaken in a less politically toxic, uninformed and polarized environment–undertaken by civically-literate, knowledgable and public-spirited “renovators”–the best we can do is “eject and elect.”

We need to eject from Congress the sorry excuses who are currently failing to act responsibly, and we need to elect people who are willing and able to discharge their responsibilities.

We need to vote as if our futures depend upon it. Because they do.

 

What Can Be Done?

Regular readers of this blog will confirm that the most consistent thread running through my posts since the 2016 election is frustration. That’s not because I’m a voice in the wilderness–there are literally millions of Americans who share my revulsion at the appalling, destructive behaviors of Trump and his administration, and who worry with me about the future of the country. But they’re frustrated too.

The frustration is because we feel powerless–we don’t know what we, as individuals, can do that will really make a difference.

Yes, I can vote in November. I can encourage others to vote, and I can register people to vote (although virtually everyone I know already is registered). I can blog. But I am only one person and, unlike our delusional President, I don’t have an exaggerated belief in my ability to change reality.

What else can I –or anyone else–do? We are surrounded by people telling us to “take action”–without, however, specifying any concrete action we might take.

A recent New Yorker article quoted Dahlia Lithwick raising a related question that two of my former students raised with me, via email, following the election. Both are federal employees, and both were wondering whether they should stay or leave.

How is one to maintain sanity, decency, and a measure of moral courage? In a pair of thoughtful essays in Slate, Dahlia Lithwick tackles the problems of dealing with the everyday nature of our current political disaster and of deciding on the best way to try to save the country from Donald Trump: by staying close to him, or by walking away. The latter is a question for members of the Administration and for congressional Republicans. “This is the time,” Lithwick writes, to “think about what combination of exit and voice can make a meaningful difference if a real crisis were to happen. Or rather, when the real crisis happens—if we are not there already.”…

Is the possibility of moderating the damage done by this Administration worth sacrificing one’s moral principles? Should one protect one’s individual integrity by sacrificing the chance to moderate damage done by this Administration? We can’t possibly know.

For most of us, “stay or go” has a different meaning– and most of us aren’t going to leave the country, no matter how often we google “immigrating to Canada.”

The author of the article, Masha Gessen, concludes that each of us must at the very least protect facts from this “reality-destroying” regime.

The great French thinker and activist Simone Weil had a prescription that she wrote down in her journal in 1933: “Never react to an evil in such a way as to augment it.” A few days later, she added, “Refuse to be an accomplice. Don’t lie—don’t keep your eyes shut.”…

In our case, stepping outside the lie means refusing—stubbornly, consistently, incrementally—to lend credence to the opposite of politics, the opposite of diplomacy, and the opposite of sanity. That would require thinking, reading, and speaking critically: not treating an outburst as though it were politics, a tantrum as though it were diplomacy, and a delusion as though it were aspiration. The good news is that this is not an entirely impossible task.

I agree that standing up for sanity and empirical reality is extremely important, but it seems woefully inadequate to the task before us, which is nothing less than the restoration of a constitutional, democratic and ethical government that citizens can trust.

The loss of democratic governance has been a gradual, decades-long process which most Americans have ignored until Trump made it glaringly obvious. His wholesale assault on decency and sanity actually impedes collective action; there are so many issues, so many different egregious offenses, so many distractions,  it fragments the expression of collective anger.

That said, a comment made to this blog a couple of days ago struck me. Gerald proposed a general strike.

Such a strike would be a massive undertaking, and not risk-free. It would need to be organized by a consortium of national organizations, and devoting time and person-power to such an effort before November would bleed resources from the critical work of getting out the vote. But after that– assuming Muller’s investigation is still ongoing, the Congressional GOP is still spineless and Trump still occupies the Oval Office– bringing the nation’s business to a halt for a day would send a message of resistance that even Trump might understand.

I”m probably just smoking whatever it is that Gerald has been inhaling–but anyone have influence with a national organization?

 

 

 

 

There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.

 

 

Beating That Dead Horse….

Last night, I spoke at the Indianapolis-Marion County Public Library, addressing–what else?–the Constitution and our current governmental dysfunctions… Regular readers have seen the following arguments before…

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Over the past several years, American political debate has become steadily less civil. Partisan passions routinely overwhelm fair-minded analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). During the recent election cycle, it was clear that in many cases, Americans were pontificating past each other rather engaging with opponents through thoughtful public discourse.

The title of this talk is “How the Constitution Drives Policy.” I’m going to expand that a bit. In America, the Constitution certainly should drive policy, because the Constitution and Bill of Rights provide a framework for legislation and limits on the sorts of measures policymakers can legitimately enact. But I am also going to talk about the ways in which our political and electoral systems—some embedded in the Constitution and some not—are distorting Constitutional norms and undermining democratic values. Those systems are also driving policymaking—and the result is a federal government that isn’t working properly, and sometimes not working at all.

Speaking of “drivers,” I am firmly convinced that there are three primary “drivers” of the rancor and partisan nastiness that is distorting our efforts at civil communication and preventing the operation of genuinely democratic governance. One is the pace of social and technological change, especially but not exclusively the Internet and social media; one is what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government; and the third is a combination of systemic malfunctions that have left us at the mercy of what pundits have accurately described as “tyranny of the minority.”

There is not much we can do about the pace of social and technological change, beyond recognizing the degree to which people find it disorienting. Despite desperate attempts to keep things as we mis-remember they were, “Stop the world I want to get off” doesn’t work. But we can and should address civic ignorance and we can and should fix our broken political systems.

I first recognized the degree to which our schools don’t teach civics when I began teaching at IUPUI. My undergraduate students had never heard of the Enlightenment, often couldn’t define government, and had little to no constitutional knowledge. 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%

In a recent national survey, only 26 percent of Americans could name the three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them. More than a third (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment. 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. During the recent attempt by Congress to repeal the Affordable Care Act, polls found that a third of Americans didn’t know that Obamacare and the Affordable Care Act were the same thing.

Productive civic engagement is based on an accurate shared understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame our policy choices in the American system.

An acquaintance with the history and philosophy that shaped what I call “the American Idea” is critically important for understanding why we do things the way we do; when we understand the roots of our national approach to government, to civil liberties, and to civil and human rights, we are better able to decide what proposals and policies are consistent with that approach. We are also better able to hold elected officials accountable if we know what they are supposed to be accountable to.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty.  

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.  Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to ensure that their neighbors were worshipping and obeying the right God too. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system was based on an Enlightenment concept we call “negative liberty.” The Founders believed that fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t know that.

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about individual rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in their buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the natural rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about government and the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach to individual rights and the nature of citizenship also helped to undermine the once-common practice of assigning social status on the basis of group identity.

The once-radical idea that each of us is born with the same claim to rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of this or that group. America was the first country to base its laws upon a person’s civic behavior, not gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender or other identity.  When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentments, religious intolerance and misogyny, until recently we had made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation.

In addition to civic equality, however, respect for individual rights also requires democratic equality—an equal right to participate in self-government.  We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest. And that brings me to the systemic issues we face, and the ways in which outdated elements of our election system—some of which are rooted in the Constitution—are driving undemocratic and even destructive behaviors.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and norms and laws shape how we understand and interpret our environments, and how familiarity with the “way things are” can obscure our recognition of systemic problems. For quite a while now, familiarity with “the way we do things” has obscured the degree to which American democracy has become steadily less democratic—and the extent to which we are denying more and more of our citizens the right to participate meaningfully in self-government.

The current operation of the Electoral College gives disproportionate weight to the votes of rural voters and those from small states, and discounts the votes of urban Americans. It’s not simply the fact that in two of the last four elections, the candidate with fewer votes won the Presidency; the lopsided influence of rural America has also given us legislation and policies that are demonstrably at odds with the desires of most Americans and arguably at odds with important Constitutional principles.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. The Constitution allows each state to manage its own voter registration and election processes, and that facilitates a lot of mischief. Voter ID laws that target the virtually non-existing problem of in-person voter fraud intimidate and discourage poor and minority voters—and that is their real purpose.

Unequal resources have always been a problem, but ever since the Supreme Court decided Buckley v. Valeo, and equated money with speech, and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes, voices and opinions of average citizens.  

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both parties are guilty.

You all know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and draws districts that maximize its own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but with the advent of computers, the process became far more sophisticated and precise, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around. Recently, the respected Cook Report looked at the nation’s political map, and concluded that only one out of twenty Americans lives in a competitive Congressional district.

Thomas Mann and Norman Orenstein are political scientists who have written extensively about redistricting. They have tied partisan redistricting to the advantages of incumbency, and they have also pointed out that the reliance by Congressional candidates upon maps drawn by state-level politicians reinforces what they call “partisan rigidity” — the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even though the same party usually retained control.

The most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if 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?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice—last year, out of 100 candidates for the Indiana House of Representatives, 32 ran unopposed.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance should be considered a civil right, partisan game-playing making elections meaningless should be seen as an assault on human rights. And increasingly, citizens see it that way. We can only hope that Gill v. Whitford, a Wisconsin gerrymandering case currently before the Supreme Court, will give us a tool we can use to put an end to partisan redistricting that disenfranchises so many voters.

It’s important to recognize that the safe districts created by gerrymandering do more than simply disenfranchise voters; they are the single greatest driver of government dysfunction. In safe districts, the only 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, in effect, 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 from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

One consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties— especially but certainly not exclusively in the Republican party— and an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

When you combine civic ignorance with extreme partisanship, constitutional compliance gets lost.

American citizens aren’t asking “Is this proposal or law constitutional? Is it consistent with America’s distinctive approach to the proper role of government and the rights of the individual?” Instead, too many of us approach our political affiliations in much the same way as we do our favorite sports teams. Rather than asking whether a proposal or law is consistent with America’s constitutional philosophy, or even whether it advances the common good, Americans ask “Is this good for my team?”

We have substituted tribal loyalty for constitutional fidelity.

For a number of years, social scientists have tracked declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important—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.

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. We aren’t having disagreements at the margins between well-informed people who agree on basic facts. We are having tantrums, thrown by people who surf the internet for confirmation of their preferred realities.

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.

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 cover, how should they be made, who should get to make them and how should they be enforced? Those who crafted our Constitution came up with certain answers to those questions, and if we are to communicate with each other, we need to know what those answers were.

The Constitution our founders created reflected their assumptions about human nature and accordingly, privileged certain values—values that need to be explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our understanding of public morality.

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 like the one we are experiencing now 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, and a legal system that emphasizes the importance of fair processes–and when our elected officials aren’t obeying those norms, when they are distorting and undermining the underlying mechanics of democratic decision-making, our government can’t function properly.

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, reinterpret our Constitution, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust required to make our democratic institutions work.

When it comes to accountability and trust, 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 shared ground—without trust in a common understanding of our nation’s foundations and commitments– we cannot have civil dialogue, let alone political agreement. Without it, we can’t repair our broken government.

If we are to rescue our electoral systems, restore our democratic norms, and come together as an American community rather than a collection of warring tribes, we have to start where this nation started—with the Constitution. We need to inform ourselves—accurately–and we need to insist that those political figures who love to whip a small copy of the Constitution out of the pockets of jackets with flag pins on the lapels actually understand what that document means, and where it came from—and that they behave in accordance with its values and principles.

It may be that this very difficult time we are going through is a test. If so, we’re in danger of failing. We Americans need to get our act together before the bell rings. The way to make America great is to make America live up to its Constitutional commitments and principles.

Thank you.