Speaking Of The Constitution…

September 17 is Constitution Day. This year, it fell on Yom Kippur, so the University of Evansville moved its celebration to the following week. That celebration included a talk by yours truly, and with your indulgence (it’s long!) I’m posting it below.

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The goal of Constitution Day is to further understanding of America’s legal framework. That’s a more important goal that we tend to recognize. I sometimes encounter people who don’t think civic ignorance matters. I disagree— I would argue that the consequences of living in a system you don’t understand are negative– not just for the health and stability of America’s democratic institutions, but for individuals. After all, if you don’t know how your government works, or who is supposed to do what, you are at a decided disadvantage when you need to negotiate the system. (If you take your zoning problem to your Congressperson, or your Social Security problem to your mayor, at best, you’re going to waste a lot of time.)

Today, however, I want to focus on some of the ways in which low civic literacy divides us as Americans and harms us as a nation.

Let me begin with an observation. What we call “political culture” –including the public conversations that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And in case you somehow failed to notice, I’m really old. There are lots of theories about what has led us to this rather unfortunate place—from partisan gerrymandering to increasing tribalism to fears generated by rapid social change—and during Q and A, we can talk about the different ways those elements and others contribute to the political nastiness we see all around us. But I want to begin tonight’s conversation by considering a different villain.

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

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. That’s what happens when we live in different realities.

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

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

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

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

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

And it matters.

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

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

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

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, we all recognize that the system they established wasn’t perfect, nor was it sufficient for all time.

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

More to the point, constitutions are by definition statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are endorsed. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle James Madison enunciated –the importance of protecting citizens’ communications from government censorship—to forms of communication Madison could never have imagined?

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

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty? How do we balance government’s duty to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do.

As I used to tell my students, the Bill of Rights does not give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government—not your boss, not your mother– from infringing upon those natural rights.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and who we should be permitted to love. We see groups on the political left shutting down speech with which they disagree, and advocating “cancellation” of materials they find offensive. Both groups want to use the power of government to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that the Constitution absolutely prohibits them from doing so. In our system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong, so long as—and this is an important caveat—so long as they are not harming the person or property of someone else.

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

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

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who gets to decide what books you read—not the merits of the books you choose. You get to decide what God you worship, or whether you worship at all; government doesn’t get to make that decision for you.

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

And that’s evidently where we are when it comes to government’s authority during a pandemic. More on that in a minute.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when large numbers of people don’t trust that our elected officials are obeying those norms, when elected officials act to undermine the Constitution and democratic decision-making, our government doesn’t function properly. Right now, America is facing some very troubling attacks on essential democratic institutions, and those attacks are further undermining public trust in government.

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust needed to make our democratic institutions work.

And that brings me back to the pandemic, which in a sane world would be in the rear-view mirror.

Our ability to defeat the Coronavirus continues to be hindered by fights over a pretty fundamental governance issue: what’s the proper balance between government’s obligation to protect its citizens and the individual’s right to autonomy, or self-governance?

How much latitude does the Constitution give government to limit our individual rights in order to protect the common good– in this case, our health and lives? What is the extent of our civil liberties in the time of a pandemic? How does the Constitution limit or authorize the various government efforts to keep us safe and control the pandemic?

One of the most visible—and increasingly contentious—of those concerns involves federalism. Federalism, as I’m sure you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the division of responsibility between the federal government and the states in a pandemic?

In previous situations involving threatened pandemics, there has been much more voluntary cooperation and coordination, so a number of these federalism questions simply didn’t arise. When Donald Trump was President, however, he disclaimed responsibility for tasks that he insisted were state responsibilities, even though they had previously been handled by the federal government. Given America’s very uneven response to the COVID-19 pandemic, and the increasing politicization of decisions that should properly be made nationally, in consultation with doctors and epidemiologists, I would argue that America should place primary responsibility for pandemic response on the federal government. The Constitution, however, is silent on that subject.

People who are resisting government efforts to control the pandemic—whether that government is local, state or federal– insist that the Constitution protects their right to ignore government mandates. Citizens have protested city and state orders requiring masks and social distancing. Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and even to the treatment of Jews during the holocaust. (I will tell you that—as a Jewish American—I find that assertion incredibly offensive.)

My own reaction to these assertions is based on both the Constitution—which, as the Supreme Court affirmed during the Smallpox epidemic, clearly allows such measures –-and on logic, or more properly, the lack thereof. Government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places; laws prohibit you from speeding and ignoring red lights. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and multiple other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty.

So much for masks. What about the shutdowns, the “stay-in-place” orders that were issued before we had a vaccine? For that matter, what if government requires that you be vaccinated?  Ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly Constitutional—and until recently, were considered uncontroversial.

Here’s the distinction: the Bill of Rights restrains government from exceeding its legitimate functions. We need to remember what those legitimate functions are. We have government in order to keep the strong from hurting the weak, the predatory from taking advantage of the helpless, and the stupid, selfish and/or misinformed from spreading a deadly disease.

There are certainly areas of legal ambiguity. What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions, or challenging the use of cellphones for “contact tracing,” which has been met with considerable alarm from privacy advocates.

Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on in-person public gatherings. Thus far, Court decisions in those cases have been inconsistent.

Then there are incarcerated persons. At what point do the elevated risks in confinement rise to the level of “cruel and unusual punishment”?

Finally—and more consequential– there’s the conflict between Free Speech and the massive amounts of misinformation and outright propaganda polluting our information environment. The First Amendment limits government’s ability to do much about that. As a free speech purist, I am very leery of encouraging government censorship, but it is impossible to ignore the reality that disinformation is a huge problem without much of a constitutional solution.

A fascinating—albeit unsuccessful case– raised an increasingly important First Amendment issue: can sources of disinformation be held liable? In Washington League for Increased Transparency and Ethics v. Fox News, the plaintiff alleged that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the virus in its television news broadcasts and by minimizing the danger as COVID began to explode into a pandemic. The non-profit that brought that suit argued that First Amendment doesn’t give media outlets the right to endanger the public by disseminating false and deceptive communications in the stream of commerce.

The lawsuit accused Fox of behavior that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” Fox was essentially being accused of shouting “There’s no fire; stay in your seats” when, in fact, there was a fire. The court dismissed the lawsuit, citing Justice Anthony Kennedy’s statement in a different suit to the effect that “falsity alone may not suffice to bring the speech outside the First Amendment” and “the statement must be a knowing or reckless falsehood.” It is very, very difficult to prove that false statements are being made “knowingly.” People genuinely believe unbelievable things.

Bottom line: If America is going to combat disinformation, it will need to be through education. If that is the case—and I believe it is–it reinforces the observations I made earlier about the importance of civic literacy.

Courses in logic would help, too…..
Thank you.