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…


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.


  1. WOW! Thanks for the intense civics “lesson”. It’s something I’ve been trying to convey for several years, but in Texas, for example, the resistance is fierce. Many folks have just swallowed the worm of deceit and refuse to examine our history with any exactitude.

    This isn’t exclusive to Texas or even the old South, but the fact that we are allowing our generations to forget how this country came to be and why is a tragedy in the making.

  2. I am going to do a little nitpicking. Your comment that the Bill of Rights protects the rights to which we are entitled by virtue of being human works for most of them. But the 2nd Amendment specifically relates a right to protection of the nation, not to our rights as humans.

  3. Quote:” 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.”

    I believe you’re referring to the Breitbart’s,et al. You wouldn’t be wrong…..

    However,I do believe such “diversions” leave other more nefarious dangers to our democracy/republic unnoticed, such as the efforts (distortions/perversions)and laws in support of (cue spooky music) The War On Terror. The Constitution has been eroded to further this so called war. And,both political organizations were the parties involved that brought about that erosion;The two organizations that most Americans vehemently support willfully chose to distort our laws to further this war. After 17+ years here we are.

  4. “Beating That Dead Horse…”
    Keep beating it. The race has just begun.

    A truly great and also horrifying piece Sheila and great comment Marv. We just need to stay this side of getting the ASPCA involved in our effort.

  5. In support of Sheila’s keen wisdom:

    “One of the truly great American novels, our own equivalent to “Don Quixote,” is about a man whose hopes required that he be oblivious to what time and change render possible. Jay Gatsby demands that Daisy deny the reality of her past and her years of marriage to another man and come to him like a young girl in love for the first time. As Fitzgerald (1925) says on the last page of his book:

    “When he first picked out the green light at the end of Daisy’s dock…his dream must have seemed so close that he could hardly fail to grasp it. He did not know that it was already behind him, somewhere back in the vast obscurity beyond the city, where the dark fields of the republic rolled on under the night.”

    Gatsby is a child living out a fairy tale about a knight-errant pursuing a quest to win his maid. He is also the only one of Fitzgerald’s characters who still believes in anything. Scripture tells us to grow up and put away childish things. Today, many intellectuals believe that the quest for Jefferson’s America is simply too quixotic for a mature mind. They had better be sure that they are correct. It is far, far harder to fan cold ashes into flame than to start a fire from scratch. If we lose faith in our ideals, it may be impossible to rekindle the fervor that has kept them alive for over two centuries. Something beautiful may vanish never to come again.”

    “Where Have All The Liberals Gone? Race, Class and Ideals in America” by James R. Flynn (Cambridge University Press, Cambridge, 2008) p. 35-36

    “If Jefferson was wrong, America was wrong”
    ~James Patton, 1874

  6. Excellent speech, Sheila.

    My only comment is unless Americans learn from their ancestors in the 30’s and 60’s and fight for what they want, the people will be oppressed like never before. It’s already happening.

    The system is rigged against the people. It has been for a very long time. It’s only gotten worse over the last four decades. Civil discourse is a losing proposition. As Chris Hedges has pointed out, “The financial Oligarchs and the politicians they own have no intention of returning the power back to the people.”

    How many Hoosier politicians serving us in Washington received campaign contributions from billionaires outside of their districts? Hard cash or negative ads against an opponent?

    We don’t have a representative republic. Not sure we ever had one.

  7. Todd,

    “Civil discourse is a losing proposition. As Chris Hedges has pointed out, “The financial Oligarchs and the politicians they own have no intention of returning the power back to the people.”

    I disagree. Civil discourse is not a losing proposition.

    Chris Hedges is a bright guy but has certain internal flaws that make for an unrealistic outlook on domestic politics. He was much better as a foreign correspondent. It took him years before he would even admit that race was a major problem in America.

  8. Three revelations from imbedding in the audience at the Palladium campaign event: fellow attendees appeared to be normal average Carmel citizens, there were NOT hundreds remaining outside because the venue was full, and most strikingly, the candidate repeatedly demonstrated abject ignorance of our system of government. The very government he proported to be fit to head. Very very few perplexed looks in the crowd. And here we are.

  9. Thank you, Sheila, for sharing this much needed reminder of where we started as a nation, how we have arrived at the extreme divisions today and what we need to stay focused on to create positive change rather than allowing our country to devolve into an uninhabitable place.

  10. By the way, before someone jumps me for my personal analysis concerning Chris Hedges, it comes from a face to face, public CIVIC DISCOURSE between the two of us in New York almost ten years ago. I’m sure that the majority of those in attendance came to the same conclusion that I did.

  11. Bravo, Sheila! You nailed it! We need more than ever to live up to our constitutional underpinnings in this era of distrust of government and (perhaps) terminal greed in the marketplace, and it is easy to despair when trying to cope with the political and economic turmoil we are seeing today in the state houses and Washington. It’s not just that we argue in debate; it’s that we don’t even agree on the rules (or with framing) even the topics up for discussion. Mired in such dissension, it is not surprising that government is frozen, that little to nothing is being done by the current Congress and a divisive-minded head of state in his narcissistic sandbox etc.
    What to do short of general strikes and civil commotion? Remove those from office who are wreaking havoc on this American experiment in democracy before our faltering democracy itself throws in the towel to the forces of power and greed. How? Vote.

  12. 2 of the last 5, rather than last 4? Gore/Bush, Bush, Obama, Obama, and he who cannot be named.

  13. I’d love to read a discussion on the “use them or lose them” nature of the Bill of Rights. Assert your right to an attorney or to remain silent or waive it for example.

  14. I agree MaryJo, this should be distributed through out the schools and nationwide. Brilliant analysis Professor. I read these and try to explain them in my own words, but yours are put together much better. Bookmarking for future reference. Thanks for teaching me something new every day. Please never die 🙂

  15. As you probably know, many of those simple civics questions that a majority of Americans get wrong are among the 100 questions that immigrants must get right in order to prepare for the naturalization test.

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