Tag Archives: Constitution

Truth And Consequences

I told you so. Over and over. (Okay, I know I’m preaching to the choir here–those who read and respond to this blog aren’t the problem…) But here we go again.

The Annenberg Public Policy Center at the University of Pennsylvania recently conducted a survey of American constitutional knowledge. CNN reported the results, which it dubbed a “bouillabaisse of ignorance.”

  • More than one in three people (37%) could not name a single right protected by the First Amendment.
  • Only one in four (26%) can name all three branches of the government. (In 2011, 36% could name all three branches.)
  • One in three (33%) can’t name any branch of government. None. Not even one.
  • A majority (53%) believe the Constitution affords undocumented immigrants no rights. However, everyone in the US is entitled to due process of law and the right to make their case before the courts, at the least.

“Protecting the rights guaranteed by the Constitution presupposes that we know what they are,” said Annenberg Director Kathleen Hall Jamieson. “The fact that many don’t is worrisome.”

Many definitely don’t. Mountains of evidence confirm Americans’ ignorance of their government.

A 2010 Pew poll asked respondents to name the chief justice of the Supreme Court. Now, I’m not a big fan of these sorts of “trivia” questions–I’m much more concerned that people know what the Chief Justice and the Supreme Court do–but it is nevertheless disheartening when fewer than three in 10 (28%) could answer correctly. That rate compared unfavorably to the 43% who had correctly named William Rehnquist as the chief justice in a Pew poll back in 1986.

Worse– although most of the 72% of people who didn’t name Roberts as the chief justice in 2010 said they didn’t know, eight percent guessed Thurgood Marshall, who was never  chief justice of the Court (and had been dead for 17 years)and 4% named Harry Reid.

In another widely-reported poll, 10% of college graduates thought Judith  Sheindlin–aka “Judge Judy”– was on the Supreme Court, but it was kind of a trick question….

When large numbers of people know absolutely nothing about the way their government is supposed to work, the consequences are grim. As the CNN report duly noted, we’re living with certain of those consequences now.

The level of civil ignorance in the country allows our politicians — and Donald Trump is the shining example of this — to make lowest common denominator appeals about what they will do (or won’t do) in office. It also leads to huge amounts of discontent from the public when they realize that no politician can make good on the various and sundry promises they make on the campaign trail.

I am alternately amused and infuriated by the fact that people who wouldn’t think of choosing a dentist who’d skipped dental school (bone spurs?) and had zero experience working on teeth are nevertheless perfectly willing to turn the government and its nuclear codes over to someone who clearly doesn’t have the slightest notion how government works (or, one suspects, what government is.)

I can only assume that this willingness is the consequence of the voter’s own ignorance of the knowledge and skills required–the “job description.”

In a very real sense, when American voters go to the polls, we are “hiring” for the positions on the ballot. Yet people who would never choose a cleaning lady who didn’t know how  clean a sink or plug in a vacuum cleaner will cheerfully cast their ballots on the basis of a candidate’s attractiveness, partisan affiliation, or belief in the juicy tidbit their neighbor whispered about the opposing candidate’s spouse.

Or the fact that the candidate hates the same people they do.

No wonder our government is broken.

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.