Category Archives: Constitution

Think “It Can’t Happen Here”? It Does.

According to recent media reports, a former Kansas state employee has filed a federal wrongful termination lawsuit, alleging that the employee’s dismissal was founded on her refusal to attend bible and prayer services in Secretary of State Kris Kobach’s office.

The defendants have admitted that regular evangelical church services were held in Secretary of State Kobach’s office–led by a “voluntary minister” with something called the “Capitol Commission,” a ministry focused solely on evangelizing Kansas’ government leaders.

I guess they missed that whole “no religious test for public office” part of the U.S. Constitution.

Coming on the heels of Kentucky’s Kim Davis (“I won’t do my job unless I can impose my religious views on others”) controversy, the news from Kansas has prompted a number of Hoosiers to shake their heads and make sympathetic noises–tsk-tsking not just about Kentucky and Kansas but also about presumed behaviors in other “backward” Bible Belt states.

As if it weren’t happening right here in Indiana.

I have former students working in the Pence Administration, and their stories are consistent and every bit as disturbing as those coming out of Kansas. These students report (nervously, after extracting sworn promises not to identify them or their agencies) receiving persistent email “invitations” to attend prayer meetings in the Governor’s office, being required to hire otherwise unqualified personnel who “go to the right church,” being criticized for the absence of bibles on their desks…and dealing with superiors who have no experience with or interest in governance and even less tolerance for public servants unwilling to approach their positions as “ministries.”

Several of those former students have left government, and they aren’t alone. (Although our crack media has failed to note or report on the matter, I’m told the turnover of agency executives during the Pence Administration has far exceeded the usual rate.)

If we still had reporters, an investigation of this Administration’s preoccupation with religion and its imposition of constitutionally forbidden religious tests would make interesting reading.


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.


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.



I Don’t Think You Understand How This Works….

Okay…I wasn’t going to weigh in on the ridiculous clerk who has been refusing to comply with the law and numerous court decisions requiring her to issue marriage licenses to same-sex couples, but these paragraphs in a recent story got me:

Davis, an elected official and Democrat, has argued that she should be exempt from following the U.S. Supreme Court ruling in Obergefell v. Hodges because she objects to same-sex marriage for religious beliefs.

She had asked the judge to delay his ruling until the Kentucky state legislature, which won’t be in session again until January, can pass legislation that would exempt her and other clerks who don’t wish to follow the law.

Does this woman really believe that the state legislature can pass a bill that–in effect–overrules the U.S. Constitution?

It’s depressing enough when ordinary citizens don’t understand the most basic structure of American government, but how in the world does someone who has spent decades working in a government office remain so appallingly ignorant of the Constitution, the Supremacy Clause, and the operation of the First Amendment?

It’s hard to escape the suspicion that this is intentional ignorance, grandstanding–that no one is really that stupid.

It’s bad enough that she seems embarrassingly ignorant of the nature of religious liberty. As many observers have pointed out, she is entitled to believe anything she wants, but she is not entitled to a government job or paycheck. If her beliefs prevent her from doing what the job requires, she needs to quit.

If I told the University that my religious beliefs “exempted” me from having to teach certain students, believe me, I wouldn’t be on the faculty very long!

A Facebook friend put it this way: if a Quaker public official refused to issue a gun permit, citing “sincerely held” pacifist religious beliefs, would Davis’ “religious liberty” defenders insist that those sincerely held religious beliefs should be accommodated? Or are her defenders more likely to be a bit selective about their demands for accommodation?

It is difficult to identify the most offensive element of this sordid effort to blame discrimination against LGBT folks on God, but I think the winner may be a statement issued yesterday by Davis’ attorney, Matt Staver of the Liberty Counsel. Stare had the chutzpah (google it) to compare Davis to the Jews under the Nazis.

According to Staver, sanctioning a government employee for refusal do the job she is being paid to do is just like sending millions of people to the gas chambers.

I want to pity these people. I really do. But they seem so unworthy of human compassion.



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!


Houston, We Have a Problem…

In my periodic rants about the state of civic knowledge, I’ve frequently cited the results of a test periodically administered by the Intercollegiate Studies Institute (ISI) as evidence of the American public’s worrisome deficit of civic literacy.

As troubling as that deficit of public knowledge is–as much as it contributes to political polarization and our inability to hold government actors accountable to constitutional standards– another outcome of ISI’s research should really terrify us.

Elected officials’ scores were lower than those of the general public in almost every category.

Of the 2,508 People surveyed, 164 say they have held an elected government office at least once in their life. Their average score on the civic literacy test is 44%, compared to 49% for those who have not held an elected office. Officeholders are less likely than other respondents to correctly answer 29 of the 33 test questions. This table shows the “knowledge gap” for each question: the difference between the percentage of common citizens who answered correctly and the percentage of officeholders who answered correctly.

Think about that for a minute.

Manufacturers don’t hire workers who don’t know how to make the product. Athletes who don’t understand the rules of their sport are soon gone. A lawyer who doesn’t know the rules of procedure and the precedents governing his practice area is likely to get sued for malpractice. Surely we have a right to expect our public officials to have a basic acquaintance with, and understanding of, the Constitution they swear to uphold.

I suppose ISI’s findings shouldn’t come as a shock; those of us who are watching the political spectacle that is the run-up to the 2016 Presidential election have seen plentiful evidence that–even among the people who presume to run for the highest office in the land–a number appear to be woefully ignorant of America’s history, philosophy and constitutional principles.

Perhaps we should test candidates for political office for basic constitutional competence before we allow them to run.