Constitution – Page 23 – Sheila Kennedy

After Roe

Happy Sunday! I will be delivering the following “sermon” (via Zoom) at the Danville Unitarian-Universalist Church this morning.

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Thank you for asking me back! I’m gratified.

As you all know by this time, my academic background is law—and more specifically, Constitutional law and the Bill of Rights.

The Bill of Rights, the approach to individual liberty that animates it, and the jurisprudence interpreting it tell us when government must respect declarations of “my body, my choice.” We’ve been hearing that slogan a lot from the people who are refusing to be vaccinated—and ironically, they’re often the very same people who label themselves “pro life” and vigorously oppose a woman’s right to control her own body.

I’m here to tell you that the anti-vaxxers throwing that slogan around have it exactly backwards.

The Founders who crafted our Constitution and Bill of Rights were influenced by the philosophy of the Enlightenment and by what we call the “libertarian construct”—the belief that we humans have an inborn right to “do our own thing”—to pursue our own interests, form our own beliefs, and make our own life choices and moral judgments, free of government interference– until and unless we are harming the person or property of someone else, and so long as we are willing to grant an equal right to others.

That approach to human rights requires government to refrain from interfering with citizens’ political or religious beliefs, but it also imposes a governmental duty to protect citizens from harm. Philosophers like Hobbes believed that was a major purpose of government—to keep the strong from taking advantage of the weak, to protect citizens from threats both foreign and domestic. We can certainly quibble over the nature and degree of the harms that justify government action, but if government can protect us from drunk drivers and the dangers of passive smoke, then a dangerous and frequently fatal pandemic is clearly a sufficient basis for government rule-making.

A pregnant woman’s decision to terminate her pregnancy, on the other hand, poses no threat of harm to her neighbors.

Despite the rhetoric—the legal issue is not whether abortion is right or wrong, good or bad. The issue is who gets to make that decision, the individuals involved or the government? In our Constitutional system, decisions about the religion you will follow, the books you will read, the political philosophy you’ll embrace, and many others—are all supposed to be left to the individual. What the courts call “intimate” decisions, like those about who you will marry and whether you will procreate, are to be left up to individual citizens, because they are none of government’s business.

I agree with the people who point out that the so-called “pro-life” movement is really pro-birth. Most of the legislators who identify themselves with the pro-life label are clearly unconcerned about women’s lives, or about feeding, housing and educating babies once they are born. But I wasn’t asked to speak to the considerable dishonesties of the anti-choice position; I was asked to focus on what will happen if—as most of us anticipate—the Supreme Court eviscerates or overrules Roe v. Wade.

Before that, however, we need to look at the actual origins of the anti-abortion movement.

Noted religion scholar Randall Balmer has documented those origins. It wasn’t until 1979—a full six years after the Court decided Roe v, Wade—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.”

Objecting to abortion was seen as “more palatable” than what was actually motivating them, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.

According to Balmer (this is a quote),

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

End quote.

Let me emphasize that. It was rightwing anger about civil rights laws that actually motivated the “Right to life” movement. The Rightwing was savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination wouldn’t cut it—that they would need a different issue if they wanted to mobilize evangelical voters on a large scale.

The bottom line is that what motivated the Christian Right’s political activism, including but not limited to its opposition to abortion, was racism and defense of racial segregation.

Let’s give credit where credit is due: that tactic has been incredibly successful. Christian Nationalists now own one of America’s two political parties—and I say that as someone who worked hard for the Republican Party for 35 years. Mitch McConnell has achieved the GOP’s fever dream of taking over the Supreme Court, and much as it pains me to say this, with the imminent demise of Roe, we are looking at what is probably the first of many times this Court will roll back individual liberties.

So what now?

If Roe is overruled—or more likely, effectively neutered– there will certainly be some horrendous consequences. But there may also be some unanticipated positives.
We have all come up against the intransigence of the “one issue” anti-choice voters, the people who disagree with Republicans about virtually everything else, but vote Republican because they are “pro life.” Without Roe, I think many of them will abandon the GOP.
Losing Roe will also make it much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists—a significant number of whom are men who want women barefoot, pregnant and back in the kitchen. Bottom line: anti-choice voters have been a mainstay of the GOP–and at the federal level, at least, they will arguably be considerably less motivated.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt to protect reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to make it possible for poor women in Red states to travel to places where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus, medically-inaccurate “counseling,” and deal with other barriers to the exercise of what is currently a constitutional right to terminate a pregnancy.

What the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And while there are no guarantees, that could be a huge game-changer.

The current agenda of the Republican Party doesn’t reflect the desires of the American majority–far from it. GOP numbers have been shrinking steadily; some 24% of voters self-identify as Republican. Their electoral success has been due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments when redistricting took place. More recent GOP vote suppression tactics that have depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control. In many states—possibly even Indiana—redirecting voters’ attention to state-level politics could change that.

Without Roe, it is reasonable to predict that the single-issue anti-choice voters that have been a mainstay of the GOP will be less motivated to vote. Pro-choice voters, however, will be newly energized, and polling suggests they significantly outnumber “pro-life” activists. A recent Pew survey has found that 61% of Americans say abortion should be legal in all or most cases, with 27% saying in all cases and another 34% saying in most cases. Only twelve percent of the public says abortion should be illegal in all cases, and only 26% would outlaw it most cases.

In anticipation of the loss of Roe, some states have already seen efforts to protect reproductive rights. A ballot drive has been launched in Michigan. Reproductive Freedom for All’s petition would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control. The groups leading the effort are Planned Parenthood Advocates of Michigan, the Michigan ACLU and an organization called Michigan Voices.

New Jersey has already enshrined abortion rights in state law. Lawmakers in that state bolstered protections for reproductive rights in anticipation of the upcoming U.S. Supreme Court decision, and Gov. Phil Murphy has signed a bill codifying abortion rights into state law. He also signed a second bill that expands insurance coverage for birth control.

Meanwhile, in states like Florida and South Dakota, lawmakers are rushing to impose new restrictions on abortion, anticipating the Court’s acquiescence with much more restrictive rules.

Knowing our Hoosier legislators, I anticipate some pretty dreadful legislation being introduced here. It will require organization and activism in Indiana to derail what the ridiculous pro-gun, anti-vaccine legislators who call themselves “pro life” will try to do.
Indiana will need an enormous uprising—of women, of men who support women, and especially of liberal churches—if we are going to escape replicating the Handmaid’s Tale here in Hoosierland.

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Another Reason To Get Rid Of The Electoral College

A few days ago, Heather Cox Richardson–a historian who writes Substack’s popular “Letters from an American”–reported on several aspects of the Trump coup effort. Among the various efforts she itemized was the following

Over the past several days, news has broken that lawmakers or partisan officials in various states forged documents claiming that Trump won the 2020 election. This links them to the insurrection; as conservative editor Bill Kristol of The Bulwark notes, false electoral counts were part of Trump’s plan to get then–Vice President Mike Pence to refuse to count a number of Biden’s electoral votes on the grounds that the states had sent in conflicting ballots.

Interestingly, on December 17, 2021, White House press secretary Kayleigh McEnany told Fox News Channel personality Sean Hannity that in four states there were an “alternate slate of electors voted upon that Congress will decide in January.” McEnany talked to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol yesterday.

Over the past few election cycles, the history and operation of the Electoral College has come under increasing scrutiny. And the more closely this odd element of our electoral process is examined, the more anti-democratic and positively dangerous it looks.

Whether, as several constitutional scholars insist, the Electoral College was a concession to the slave states, or as its defenders contend, it was an effort to give added electoral heft to smaller states–it It currently undermines democracy and–as Richardson’s report illustrates–facilitates the efforts of those who would overturn the will of American voters.

Structurally, there is a great deal wrong with the Electoral College. For one thing, it substantially advantages white rural voters. Research suggests that–thanks to the current operation of the College– every rural vote is worth one and a third of every urban vote. Small states already have a significant advantage by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators.

No other advanced democracy in the world uses anything like the Electoral College (and as political scientists have noted, there are good reasons for that). And for those who fashion themselves as “originalists,” it’s worth pointing out that our current version of the Electoral College is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who wrote a book on the subject, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

These issues aside, the main problem with the Electoral College today isn’t even the undemocratic and disproportionate power it gives rural voters and smaller states. It’s the statewide winner-take-all laws, under which states award all their electors to the candidate with the most popular votes in their state– erasing all the voters in that state who didn’t vote for the winning candidate.

Forty-eight states have winner-take-all rules. As a result, most are “safe” for one party. The only states that really matter in any given federal election are “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.

Winner-take-all has an even more pernicious effect–it disincentivizes voting by people who are in their state’s political minority. If your state is red and you are blue, or vice-versa, it’s easy to convince yourself your Presidential vote is meaningless, because it is.

Winner take all rules are why Democratic votes for President simply don’t count in Indiana and Republican votes for President don’t count in New York. Even if the margin is incredibly thin, the candidate who comes out on top gets all of that state’s electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who support the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Joe Biden had to win the popular vote by five percentage points or more — by more than seven million votes — to insure his win in the 2020 election. That’s not only an unfair and undemocratic burden–it’s insane.

Now we learn that–in addition to its multiple anti-democratic effects–the College facilitates cheating. It really needs to go.

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Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so. As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

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(Some Of) We The People

I’ve been reading The Words That Made Us, a magisterial history of the origins of the Constitution, written by Yale Constitutional Law professor Akil Amar. Amar’s previous books include The Bill of Rights and America’s Constitution: A Biography, both of which I read and found enlightening. (For example, in the latter book, Amar documents the extent to which the Amendments passed after the Civil War–especially the 14th–represented a significant reconstruction of the nation’s legal framework.)

This new book is also copiously and carefully documented, and as a consequence, it can be a bit of a slog; on the other hand, I’m encountering a number of heretofore unknown (by me, at least) details about the process that produced our Constitution, and the personal characteristics of the men who fought over it, theorized about it, and negotiated it.

Which brings me to a point on which most of those Founders apparently agreed–sovereignty in the U.S. rests with “We the People.” Not with the individual states, certainly not with Kings or Presidents–but with the people. We can now be critical of the worldview that confined definition of “the people” to free White males, and we should celebrate the later expansion of “the people” to include women and people of color–but we shouldn’t minimize the importance of what was then a truly revolutionary concept of sovereignty.

Interestingly, Amar points out that after the “constitutional conversation” over ratification took place, most colonies eliminated property ownership requirements for voting on the new charter. (Something else I’d previously not known.)

“The people” was–for that time–an inclusive concept.

America today faces a very dangerous tipping point–brought to us by a party, really a cult or cabal–that wants to change the concept of sovereignty and the definition of “people.”

We talk and write a lot about democracy, but what we mean by that term varies. As a number of pundits have pointed out, autocrats around the globe often claim to be “democratically” empowered, because their countries hold “elections.” (Note quotation marks.)

The men who crafted America’s Constitution broadened the then-definition of People, and saw democracy as the authority of those people. Today, faux patriots are engaged in narrowing it.

Gerrymandering carves out particular “people,” whose votes will outnumber and void the voices of others. The Electoral College–which Amar reminds us was an unwise concession to the slave states–operates to nullify the votes of a majority of the people who cast Presidential ballots. And as the Committee investigating the January 6th insurrection is discovering, a not-insignificant number of elected and appointed Republicans–including Trump– fully intended to mount a coup and overturn an election decided by the people that numerous investigations (and Trump’s own dishonorable Attorney General) confirmed was free and fair.

The introduction to the U.S. Constitution doesn’t say “We (some of) the People.” It doesn’t say–as far too many of today’s faux patriots evidently believe– “We the (White Christian) People.” It says “We the People.”

If sovereignty is to be vested in We the People, all people’s votes must be counted and all people’s voices must be heard. That isn’t happening. (Okay, it’s never really happened, but we have previously moved in that direction.) To the contrary, we’re moving backward, thanks to a well-organized effort to subvert democratic equality and the very idea of “one person, one vote.”

As Barton Gellman reports in the linked article,

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

It is past time to reassert the sovereignty of ALL of We the People, and take back the country we thought we inhabited.

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But I Repeat Myself…

Last Thursday, I delivered the following speech to a Kiwanis group in Northwest Indianapolis. Longtime readers of this blog will recognize the “theme”…It’s also considerably longer than my usual posts, so my apologies.

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Over the past several years, we’ve seen America’s political debates become steadily less civil. Bigotries that were once more or less suppressed—at least, in polite company– are being publicly paraded. Partisanship has overwhelmed reasoned analysis. The death of newspapers and the ubiquity of social media and the Internet have encouraged people to choose their news (and increasingly, to inhabit their preferred realities).

I’m here today to suggest that an enormous amount of this contemporary rancor is a result of civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government.

John asked me to talk a bit about this small book I wrote a couple of years ago–Talking Politics? What You Need To Know Before Opening Your Mouth.. I wrote it because I believe that civic ignorance is a huge, and hugely under-appreciated, element of America’s current dysfunctions.

Voters don’t need to be constitutional scholars, but a basic understanding of the history and structure of American government matters. A lot. Productive civic engagement requires an accurate understanding of the “rules of the game” — especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system.

Most educated Americans know that our Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. What is less recognized is that the Enlightenment did something else: it changed the way people defined individual liberty.

We’re taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty, and that’s true; what we aren’t generally taught, however, is how they defined that 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 make sure their neighbors did likewise.

The Enlightenment ushered in a dramatically different definition of liberty, sometimes called the Libertarian Construct. It’s a version of liberty that insists on the right of individuals to determine their own moral ends and life goals, and their right to pursue those goals free of government interference. People were supposed to be free to “do their own thing,” so long as they were not harming the person or property of others, and so long as they were willing to grant an equal measure of liberty to others.

The post-Enlightenment version of liberty begins with the belief that fundamental rights aren’t gifts from benevolent governments; instead, Enlightenment philosophers and America’s Founders believed that humans are entitled to certain rights just because we’re human– and that government has an obligation to respect and protect those inborn, inalienable human rights.

When we ask the question whether this or that behavior is protected by the Bill of Rights, it’s really important to recognize that the Founders didn’t conceive of the Amendments as grants of rights—they were commitments to protect our human, inborn rights from an overzealous government and what they referred to as the “passions of the majority.”

As I used to tell my students, the Bill of Rights is essentially a list of things that government is forbidden to do. Government cannot dictate our religious or political beliefs, search us without probable cause, or censor our communications, for example—and it can’t do those things even when popular majorities approve. The Founders focused on restraining the power of the state, because in their world, governments were the most powerful entities. That’s why we define civil liberties as freedom from government intrusions. It wasn’t until 1964 that the United States began to pass civil rights laws that prohibited discriminatory behavior by private-sector actors.

I’m constantly amazed by how many Americans don’t understand the difference between constitutional liberties and civil rights, or the anti-majoritarian operation of the Bill of Rights—or, as we are seeing during this pandemic—the legitimate limits of our individual liberties.

Governments create what lawyers call “rules of general application” to protect the common good. Public officials can properly and constitutionally establish speed limits, ban smoking in public places—even require us to cover our genitals when we’re out in public. As Justice Scalia wrote in Employment Division vs Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t really sneaky efforts to unfairly target specific groups—they don’t violate the Constitution.

Here’s the thing: the U.S. Constitution as amended and construed over the years guarantees citizens an equal right to participate in democratic governance and to have our preferences count at the ballot box. Those guarantees are meaningless in the absence of sustained civic engagement by an informed, civically-literate citizenry. Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-informed and engaged electorate.

The consequences of living in a system you don’t understand aren’t just negative for the health and stability of America’s democratic institutions, but for individuals as well. There’s a Facebook meme going around to the effect that people who don’t understand how anything works are the people most likely to latch on to conspiracy theories. Whether that’s true or not, it is definitely the case that people who don’t know how government works are at a real disadvantage when they need to navigate the system. (Try taking your zoning problem to your Congressman.) Civic ignorance also impedes the ability to cast an informed vote. Especially at times like these—when official action or inaction can trigger massive protests– citizens need to know where actual responsibility resides.

Today, we are all seeing, in real time, the multiple ways in which civic ignorance harms the nation. As I indicated earlier, what we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m really old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting, to increasing tribalism, to fears generated by rapid social and technological change. But our current inability to engage in productive civic conversation is also an outgrowth of 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 understanding of what our Constitutional system requires.

Here’s an analogy: if I say this piece of furniture is a table, and you say no, 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 informed people of good will can come to different conclusions about what the Constitution requires or prohibits. But by and large, those aren’t the things Americans are arguing about.

In my academic life, I studied how Constitutional values apply within an increasingly diverse culture, the ways in which America’s constitutional principles connect people with different backgrounds and beliefs and make us all Americans. That research convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of America’s history and philosophy—is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, the data shows civic knowledge is in very short supply.

Let me share an illustrative anecdote: When I taught Law and Public Policy, I began with what I like to call the “constitutional architecture,” a discussion of the ways America’s legal framework limits what laws we can pass, and what legal scholars mean when they refer to the importance of the Founders’ “original intent.”

I liked to ask students “What do you suppose James Madison thought about porn on the internet?” Usually, the student would laugh and then we’d discuss how the Founders’ beliefs about free expression should guide today’s courts when they are faced with efforts to censor media platforms 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?”

It’s tempting to consider that student an outlier–but let me share with you just a tiny fraction of available research. The Annenberg Center conducts annual surveys measuring what the public knows about the Constitution. Two years ago, 37 percent couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could identify the three branches of government. Fewer than half of 12th graders can define federalism. Only 35% of teenagers recognize “We the People” as the first three words of the Constitution. It goes on and on.

And it matters, because Constitutions 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 act rather than who you are. Initially, as we know, the American Idea only applied to property-owning White guys, but—over a lot of resistance– we have steadily expanded it. (As the ubiquity of cellphone cameras keeps demonstrating, we’re still struggling with that expansion.)

History tells us that 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, we all recognize that the system they established was far from perfect. The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. 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—or tell you to wear a mask in public?

How would the conversations we are having about vaccination mandates and masks change, if parties to those conversations all understood how our Constitution approaches both the rights of individuals and the duties of government?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when citizens don’t understand what government has the right to demand. We can—and do—argue about what constitutes harm, and when that harm is sufficient to justify government intervention in personal decision-making.

When people 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. We’re back to arguing whether a piece of furniture is a table or a chair.

Like all human enterprises, Governments have their ups and downs. I think most of us will agree that we are in a very “down” period right now. Unfortunately, in the United States, the consequences of “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based 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—at least theoretically– is a set of constitutional values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our democracy can’t function properly.

There will always be disagreements over what government should and shouldn’t do. 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, and learn how to bridge our differences. When widespread civic ignorance allows dishonest partisans to rewrite our history, pervert our basic institutions, and ignore the rule of law, we not only undermine the Constitution and the American Idea, we erode the trust needed to make democratic institutions work. Ultimately, that’s why civic ignorance matters, and why I wrote that little book.

It’s a very little drop in a very big ocean…but we can only do what we can do.

I know I rant. Thanks for indulging me.

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