What Ted Said

My upcoming IBJ column.

Right now, Americans are deeply involved in one of our periodic debates about government spending and the budget deficit. Important as that is, I am more concerned about our civic deficit—the widespread lack of basic constitutional literacy.

In these pages a couple of weeks ago, recently-retired Indiana Justice Ted Boehm made a strong case for the importance of civics education in a democracy. He focused especially on the need for an educated citizenry that appreciates the constitutional separation of powers: the assignment of different duties to different branches of government. His concerns are well-founded; barely 36% of Americans can even name the three branches, let alone explain the theory behind separation of powers and the role of the judiciary.

I agree with everything Justice Boehm said in that column—and then some.

The research is depressing. Fewer than half of 12^th grade students can define federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can define America’s system of checks and balances.

The consequences of this civic deficit are profound and alarming.

For one thing, when a country is very diverse, as in the United States, it is particularly important that citizens know the history and philosophy of their governing institutions; in the absence of other ties—race, religion, national origin—a common understanding of constitutional principles is critical to the formation of national identity.

A shared understanding of our most basic institutions is also necessary if we are to have productive—not to mention honest—political debates. When citizens are ignorant of the most elementary facts of our founding history, when they lack even the most rudimentary familiarity with the Founders’ philosophies (and yes, that’s plural, because the architects of our legal system were not a monolithic entity), they are easy prey for the propagandists, buffoons and conspiracy theorists that populate the airwaves and thrive on the internet.

Case in point: David Barton and his Wallbuilders have been around for a long time, offering a carefully edited—and inaccurate—“history” to those who find provisions of the actual Constitution inconvenient. He is a joke (or worse) among American historians and legal scholars. Recently, however, his revisionism has been embraced by Tea Party members of Congress, most notably Representative Michelle Bachmann. Among other things, Barton claims that state and local governments are not bound by the provisions of the Bill of Rights, because the Founders intended it to restrain only the federal government. He doesn’t mention that the 14^th Amendment—adopted in 1868—changed that.

Students who have had even the most basic government course ought to know enough about the Bill of Rights and the 14^th Amendment to reject this sort of nonsense out of hand. But clearly, they don’t. The result is that political discourse has become an exercise in which people occupying different realities talk past each other.

People who are civically literate can and do have good-faith differences of opinion about the application of constitutional principles to new “facts on the ground.” (Should the 4^th Amendment’s prohibition against “unreasonable” searches prevent police from using information from your cell-phone provider without a warrant? What about NSA data-mining?)

I sometimes introduce discussions of original intent by asking my students what James Madison thought about porn on the internet. Madison could not have envisioned cyberspace, of course, but he had strong opinions about free expression. I don’t expect students to agree about what Madison’s position would be, but I do expect them to know who James Madison was.

Increasingly, they don’t.