Constitution – Page 47 – Sheila Kennedy

The City And The Constitution

I was asked to speak to participants in the local OASIS program about the interaction of the Constitution with municipal government, and about my experiences during the Hudnut administration. I decided to share it, both as a needed vacation from Trumpism and as a reminder that there used to be decent politicians in both parties…

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When constitutional issues arise, most of us think of the federal government, and especially the Supreme Court. But the Constitution and the Bill of Rights apply to all levels of government, and are enforced by both state and federal courts—it’s what we mean when we talk about “the law of the land.”

There are differences in jurisdiction, of course—we have a federalist system, which means that some areas of the law are left to state and local governments—but those areas have to be consistent with the national Constitution. I am constantly amazed at how many people don’t know anything about federalism—that division of authority between the federal government and state and local governments—or about Separation of Powers or other basic aspects of America’s legal structure.

I really encountered this lack of “civic literacy” when I was at the ACLU. The ACLU defends the Bill of Rights, which is essentially a list of things that government can’t do. The Bill of Rights answers the question: who decides? Who decides what prayer you say, what political beliefs you hold, what books you read? In the United States, citizens get to make those sorts of decisions for ourselves, free of government interference.

Since the Bill of Rights only limits what government can do, the ACLU only sues government. Not only did I discover that a lot of people don’t know that the Bill of Rights only restrains government, I also discovered that a lot of people don’t know what government is.

Originally, the Bill of Rights applied only to the federal government. It wasn’t until passage of the 14^th Amendment that states were required to extend the “privileges and immunities” of citizenship to their own residents. After the 14^th Amendment was ratified, there was a series of decisions in which the Supreme Court ruled that the Bill of Rights also limited the authority of state and local government officials.

Evidently, a lot of people haven’t encountered the 14^th Amendment: When I was Corporation Counsel, I issued an opinion that the 1^st Amendment prohibited the City from doing something—I no longer recall what—and someone wrote an angry letter to the editor that began, “I read the First Amendment, and it says Congress shall make no law…” That’s an excellent example of why just reading the text of the Constitution—especially the text of only one amendment—won’t give you the whole story.

Speaking of stories…I was asked to share some of the highlights—and low points—of my three- year stint as Corporation Counsel (chief lawyer) of the City of Indianapolis, with a focus on how the Constitution and Bill of Rights affect municipal governments.

I was appointed Corporation Counsel by Mayor Bill Hudnut in 1977. To the best of my knowledge, I was the first woman to hold that position in a major metropolitan area, and my first encounter with a constitutional issue was a lesson in both sexism and freedom of the press: Indianapolis still had two newspapers then, and the evening News featured a “Gossip” box on the front page. When my appointment was announced, the Gossip box “item” was something along the lines of: a high-ranking official has appointed his most recent honey to an important position in City Hall. No names, but it wasn’t hard to figure out who they were talking about. (After all, as one newspaper had described me, I was a “divorcee.” We don’t hear that word much these days, fortunately…sounds pretty racy.)

On my second day on the job, I got a call from the U.S. Justice Department. At the time, the City was being sued for a history of race and gender discrimination in the police and fire departments; we ultimately entered into a consent decree, because Mayor Hudnut recognized that history and wanted to correct it. But the suit had just been filed a few months before the call from the Justice Department lawyer. He asked for Dave Frick, my predecessor, who had become Deputy Mayor. Dave’s Secretary explained that he was no longer Corporation Counsel and asked him if he would like to be transferred to the new Corporation Counsel. He said yes—and I picked up the phone and said “May I help you?” He said, “Yes, I’m holding for the new Corporation Counsel.” This was 1977, and there weren’t many women lawyers then; he clearly thought he was talking to a secretary. After a pause, I said “This is the new Corporation Counsel.” He was suitably embarrassed. (On the other hand, he was really easy to deal with after that.)

Within my first couple of months on the job, I confronted a pretty classic First Amendment Religious Liberty issue. (The First Amendment has two religion clauses: the Establishment Clause and the Free Exercise Clause; together, they mandate governmental neutrality in matters of religion). For many years, the City had erected a Nativity scene on Monument Circle at Christmas. Monument Circle was—and is—publicly owned. Erecting a religious display on government property is a violation of the Establishment Clause; it is an endorsement of religion—in this case, the Christian religion. The jurisprudence was very clear, and when the City was threatened with a lawsuit, I advised Hudnut that we would lose such a suit if it were to be brought.

Unlike so many of today’s politicians, Hudnut did not use the conflict as an excuse to grandstand. He could have made points with people who didn’t understand the Constitution by “defending” the display; instead, he used the incident as an opportunity to educate. We sold the nativity scene to the Episcopal Church across the street and they displayed it, still on the Circle, where it was equally prominent and totally Constitutional.

Mayor Hudnut—who had been a Presbyterian Minister before he was elected—took all kinds of heat for “attacking Christianity.”

I think this incident was the first time I realized that some people want their religious symbols on public property because they want government to endorse their particular beliefs. It didn’t matter to these folks that the nativity scene was still on the Circle, still easily viewed: they wanted the City to send a message that their beliefs were favored, that their religion made them “real Americans,” and that people who hold different beliefs should be considered second-class citizens. That message, of course, is precisely what the Establishment Clause forbids.

One of the things that the City’s legal department does is advise committees of the City-County Council when legal questions arise. I still vividly remember being asked to testify about a proposed ordinance to ban Rock concerts from City parks. A local Reverend had persuaded his City-County Counselor to introduce the ordinance, which as I recall was pretty explicit about the reason, which was to protect Indianapolis’ citizens from immoral lyrics. It wasn’t concerns about traffic or noise or other issues that are entirely appropriate for City government to consider.

This minister had brought a busload of his church members with him to this particular committee meeting, and they sat in the public hearing room waving small American flags. It was surreal.

I testified that the ordinance as written would violate the First Amendment’s Free Speech Clause. Freedom of speech requires government to be what lawyers call “content neutral:” government can restrict the time, place and manner of communications, to a degree, but it can’t pick and choose what messages get exchanged. I explained to the Committee (and the audience) that there were a number of things the City could constitutionally control—traffic, noise, sanitation—but that the Constitution would not allow censorship of certain kinds of music based upon disapproval of the messages being conveyed by the lyrics.

When I completed my testimony and turned to leave, the Pastor rose from his seat and yelled at me, “My bible is more important than your Constitution.” (I thought it was interesting that the bible was his and the Constitution was mine…)

Most of the Constitutional issues I dealt with at the City were (fortunately) a lot less “exciting” than that encounter. For example, during my three years in City Hall, City Legal defended a number of what lawyers call Section 1983 cases. Section 1983 is a provision of federal law that allows people to recover attorney’s fees if they win a lawsuit alleging that someone acting on behalf of City government violated their constitutional rights. It’s a very important safeguard, because many—probably most—people whose rights have been violated can’t afford a lawyer. If lawyers know that they will be paid by the city if they are successful, in other words, if they can prove that the City really did violate their clients’ rights, they are more likely to take meritorious cases—and more likely to decline sure losers.

As I noted previously, Mayor Bill, as we called him, was a minister, and sometimes his minister side pressured his Mayor side. For example, he really wanted to close down bookstores that sold sexually explicit books and magazines, and periodically he would suggest some creative—but constitutionally dubious—ways of doing that. I like to think I kept him constitutionally compliant while I was there, but after I left, the City passed a truly bizarre ordinance that tried to sidestep the Free Speech provisions of the First Amendment by defining “pornography” as sex discrimination.

The District Court, the Seventh Circuit and the Supreme Court all saw through that strategy.

The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. Some of you may have seen the story from this year’s 4^th of July, when NPR tweeted out the Declaration of Independence, and got hundreds of angry emails from people who thought it was an attack on the President, or “communist propaganda.”

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%

Only 36 percent of Americans can name the three branches of government. 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.

America is the most diverse country on earth. What we have in common—what makes us Americans—is allegiance to a particular concept of law, a particular approach to self-government. When we don’t know what that approach is, or why our Founders crafted the system we have, we lose what holds us together, what makes us one nation.

To borrow a phrase from the Tweeter-in-Chief: that’s sad.

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It’s the Constitution’s Fault!

As I watch the unfolding train wreck that is the Trump Administration, and talk with friends and colleagues, it’s increasingly clear that most of us are more mystified and appalled than angry. (Not that we aren’t angry…)

How, we ask each other, could anyone be so ignorant of the most basic rules that govern our society? How could someone whose background was entertainment and whose entire focus was ratings be so oblivious to massively negative public opinion? How can anyone get to the ripe old age of 70 without even a shred of self-awareness?

And of course, the recurring question: why would anyone vote for this ignorant buffoon? It’s not like his abundant deficits weren’t obvious during the campaign.

I don’t have answers to most of those questions, but I think a recent article in the Independent, a British newspaper, sheds some light on Trump’s path to constitutional crisis.

The article was one of many that attempted to evaluate Trump’s first 100 days in office; it reported on an interview with the President’s favorite source of “news.” (Note quotation marks.)

Donald Trump has blamed the US constitution for the problems he has encountered during his first 100 days in office.

In an interview with Fox News to mark the milestone, the Republican called the system of checks and balances on power “archaic”.

“It’s a very rough system,” he said. “It’s an archaic system … It’s really a bad thing for the country.”

Lest we shrug this off as just another “open mouth, let stuff come out” incident in Trump’s stream-of-(semi)consciousness mode of utterances, I would simply point out that everything he has done in office has been consistent with contempt for, or ignorance of, America’s charter, and his unwillingness to be bound by the rule of law–indeed, his clear lack of comprehension of what “rule of law” is or means.

I think I’m going to add a codicil to that question about American voters. Why would anyone vote for a man who quite clearly does not understand or even pretend to value the legal premises of the country he was proposing to lead–a man who is unwilling to give even lip service to the U.S. Constitution?

To date, I am unaware of any Republican criticism of Trump’s comment.

What happened to all the posturing bloviators who constantly profess their undying devotion to a constitution they clearly don’t understand? Why aren’t they registering shock and concern at the President’s airy dismissal of America’s founding document?

What happened to all those pompous assholes who whip a small copy of the Constitution out of their pockets at the slightest provocation? Where are the members of the NRA’s Church of the Second Amendment? Where are all the pious frauds who constantly promote their ahistorical version of the First Amendment’s protection of religious liberty?

Surely they are all appalled. Where are they?

And a more pressing question: why are Congressional Republicans continuing to enable and defend a man who not only dishonors the Constitution by word and deed, but also poses an unmistakable threat to American democratic institutions at home and the country’s stature abroad?

Can you imagine their response if Obama had said or done any of these things?

Of course, Trump’s white. (Okay, orange, but close….)

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The American Idea

In the very first book I wrote (“What’s a Nice Republican Girl Like Me Doing at the ACLU?”), I advanced a theory I called “the American Idea.” My thesis was that one becomes an American through allegiance to what I call “the American Idea”–the philosophy of governance advanced in the Declaration, the Constitution and the Bill of Rights. Unlike citizenries that depend upon identity–ethnic, religious, etc.– for their cohesion, one becomes an American via acceptance of those overarching ideas.

Of course,it would help if more people knew what those “overarching ideas” are…

A recent book discussed in the New York Times echoes that thesis–and suggests that it may no longer be operative.

Robert P. Jones begins the column by sharing Chesterton’s description of the American Idea.

After the British writer G. K. Chesterton visited the United States for the first time, he remarked that America was “a nation with the soul of a church.”

Mr. Chesterton wasn’t referring to the nation’s religiosity but to its formation around a set of core political beliefs enshrined in founding “sacred texts,” like the Declaration of Independence. He noted that the United States, unlike European countries, did not rely on ethnic kinship, cultural character or a “national type” for a shared identity.

The profoundness of the American experiment, he argued, was that it aspired to create “a home out of vagabonds and a nation out of exiles” united by voluntary assent to commonly held political beliefs.

This “voluntary asset to commonly held political beliefs” is what I meant in my earlier (less eloquent) formulation, and what I still believe is the essential characteristic of that elusive thing we call “Americanism.”

But it’s badly frayed. As Jones writes,

Recent survey data provides troubling evidence that a shared sense of national identity is unraveling, with two mutually exclusive narratives emerging along party lines. At the heart of this divide are opposing reactions to changing demographics and culture. The shock waves from these transformations — harnessed effectively by Donald Trump’s campaign — are reorienting the political parties from the more familiar liberal-versus-conservative alignment to new poles of cultural pluralism and monism.

Jones shares polling results that highlight the very different worldviews of today’s Republicans and Democrats, and concludes that America’s increasing pluralism is something of an existential challenge to many of the country’s white Protestants.

Taken as a whole, these partisan portraits highlight contrasting responses to the country’s changing demographics and culture, especially over the past decade as the country has ceased to be a majority white Christian nation — from 54 percent in 2008 to 43 percent today. Democrats — only 29 percent of whom are white and Christian — are embracing these changes as central to their vision of an evolving American identity that is strengthened and renewed by diversity. By contrast, Republicans — nearly three-quarters of whom identify as white and Christian — see these changes eroding a core white Christian American identity and perceive themselves to be under siege as the country changes around them.

Jones compares the current times with other eras in which the American fabric has been severely frayed: the Civil War, turn-of-the-century immigration upheavals, and the turmoil of the 60s. But as he points out, White Christians still saw themselves as owners of the civic table–the question was whether they would make room at that table for others.

Suddenly, they find themselves in a position in which they are not inviting “guests” to “their” table, but facing the prospect of shared ownership. That’s a new and very unsettling challenge, and the way forward is by no means clear.

The temptation for the Republican Party, especially with Donald Trump in the White House, is to double down on a form of white Christian nationalism, which treats racial and religious identity as tribal markers and defends a shrinking demographic with increasingly autocratic assertions of power.

For its part, the Democratic Party is contending with the difficulties of organizing its more diverse coalition while facing its own tribal temptations to embrace an identity politics that has room to celebrate every group except whites who strongly identify as Christian. If this realignment continues, left out of this opposition will be a significant number of whites who are both wary of white Christian nationalism and weary of feeling discounted in the context of identity politics.

This end is not inevitable, but if we are to continue to make one out of many, leaders of both parties will have to step back from the reactivity of the present and take up the more arduous task of weaving a new national narrative in which all Americans can see themselves.

I firmly believe that the American Idea can still serve that purpose. But we need to build a culture that supports and nourishes that Idea, and doing that requires that we improve and emphasize civic education and that we abandon–or at least stop encouraging–racial and religious resentments.

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Human Rights, Equal Rights, Political Rights

Last night, I spoke at the annual dinner of the Columbus, Indiana, Human Rights Commission. Here’s what I said (sorry for the length…):

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Over the past several years, American political debate has become steadily less civil. Partisan passions have overwhelmed sober 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 talking past each other rather engaging with opponents through thoughtful public discourse.

I am firmly convinced that an enormous amount of this rancor and partisan nastiness is a result of what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government. 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%

Why does it matter? Well, for one thing, productive civic engagement is based on an accurate understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame policy choices in the American system.

Understanding the history and philosophy that shaped what I call “the American Idea” is critically important for understanding the roots of our national approach to human rights.

The American Constitution was a product of the 18^th 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 toed the same line. 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 is based on an Enlightenment concept we call “negative liberty.” The Founders believed that our 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 understand 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 human 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 multifamily buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then the broader society is not respecting the human 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 the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. The new concept of human rights 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 human rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of a 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, we have made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation. So on that scale, good for us!

In addition to civic equality, however, respect for human 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 of human rights, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest.

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 conventions and laws shape our understanding of our environments, and obscure our recognition of social problems. Right now, longstanding practices are obscuring the degree to which American democracy is becoming steadily less democratic—and the extent to which we are denying citizens the human right to participate meaningfully in self-government.

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. Thanks to population shifts, the current operation of the Electoral College gives disproportionate weight to the votes of white rural voters, and discounts the franchise of urban Americans. Ever since Buckley v. Valeo, which 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 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 political parties are guilty.

Those of you in this room 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 they draw districts that maximize their 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 the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Republican Norman Orenstein and Democrat Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and they have also pointed out that the reliance by House candidates upon maps drawn by state-level politicians has reinforced 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, the researchers found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even when the same party retained control.

Perhaps 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. 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 is a human right, partisan game-playing that makes elections meaningless should be seen as an assault on human rights. And increasingly, it is.

Safe districts do more than disenfranchise voters; they are the single greatest driver of governmental 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.

The consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties, each with an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

A study done by researchers at the University of Chicago concluded that Indiana is the fifth most gerrymandered state in the country. We had a chance to change that system in the just-concluded legislative session; Representative Jerry Torr, a good government Republican, introduced a measure that was co-sponsored by Brian Bosma, the Republican Speaker of the House. Thanks to efforts by the League of Women Voters and Common Cause, the public came out in droves from all over Indiana in a massive show of support for the bill; however, the chair of the Elections Committee, Milo Smith, refused to allow his committee even to vote on it, and killed it.

In the United States, we tend to think of Human Rights in terms of legal rights: equality before the law, an equal right to participate in democratic governance and to have our preferences count at the ballot box. But most of us recognize the existence of non-legal challenges to full realization of equal human rights. Poverty is one; a citizen working two or three jobs just to put food on the table doesn’t have much time for civic engagement, and in Indiana, that’s a lot of people.

In 2014, the United Ways of Indiana took a hard look at “Alice.” Alice is an acronym for Asset Limited, Income Constrained, Employed; it applies to households with income above the federal poverty level, but below the actual, basic cost of living. The report was eye-opening.

More than one in three Hoosier households cannot afford the basics of housing, food, health care and transportation, despite working 40 or more hours a week.
In Indiana, 37% of households live below the Alice threshold, with some 14% below the poverty level and another 23% above poverty but below the cost of living.
These families and individuals have jobs, and most do not qualify for social services or support.
The jobs they are filling are critically important to Hoosier communities. These are our child care workers, laborers, movers, home health aides, heavy truck drivers, store clerks, repair workers and office assistants—yet they are unsure if they’ll be able to put dinner on the table each night.

ALICE families don’t have time or energy for civic participation or political engagement through which to exercise their human and civil rights. Human Rights Commissions lack the jurisdiction to address ALICE inequities, but we all need to recognize that people preoccupied by a daily struggle for subsistence are unable to participate fully in the formation and conduct of civic society.

How can our civic institutions—including local Human Rights Commissions– help guarantee citizens’ human rights?

Human Rights Commissions can act when employers or owners of public accommodations violate local ordinances. Indiana also has a civil rights law, although it currently omits protection against discrimination based upon sexual orientation and gender identity, and the federal government has several agencies charged with enforcement of civil rights—although recent statements from Administration officials have called their commitment to doing so into question. Local to federal, these agencies are important, and the work they do is critical to social stability and fundamental fairness.

Critical as they are, there are rights violations these agencies cannot address or solve. Reversing the erosion of America’s democratic norms, turning back the assault on equal access to the ballot box, and fixing the gerrymandering that makes too many votes meaningless will require political action and persistent civic engagement by an informed, civically-literate citizenry. We all have a stake in improving civic knowledge and encouraging informed participation, because safeguarding human rights ultimately depends upon the existence of a civically-informed electorate.

It won’t be easy, but We the People can do this.

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The Evidence Keeps Accumulating…

Periodically, I use this blog to indulge a rant about Americans’ lack of civic literacy. (Regular readers are probably getting tired of my preoccupation with civic education–or more accurately, the lack thereof.) Be warned– I’m going to beat that dead horse again today.

A column written by Colbert King from the Washington Post has highlighted still another research project confirming Americans’ low levels of civic knowledge.

King introduced the topic by noting what we might call “constitutional challenges” in Donald Trump’s Presidential campaign.

He proposed a religious test on immigration, promised to “open up” U.S. libel laws and revoked press credentials of critical reporters. He called for killing family members of terrorists, said he would do “a hell of a lot worse than waterboarding” terrorism suspects and suggested that a U.S.-born federal judge of Mexican heritage couldn’t be neutral because of his ethnicity. He whipped up animosity against Muslims and immigrants from Mexico, branding the latter as “rapists.”

When protesters interrupted his rallies, he cheered violence against them. He told a political opponent that if he won, he would “get a special prosecutor to look into your situation,” adding “you’d be in jail.” He threatened not to respect election results if he didn’t win and, in Idi Amin fashion, made the claims of a strongman: “I alone can fix it.” He publicly expressed admiration for authoritarian Russian President Vladimir Putin.

Cherished notions of religious freedom, a free press, an independent judiciary and the rights of minorities took a beating from him. The prospect of mob violence in his defense and imprisoning of political opponents found favor.

An electorate with even a basic understanding of the U.S. Constitution would have found these assaults on foundational American principles reprehensible. And in fairness, civically- educated Americans did recoil.

The problem is, we don’t have enough civically-educated Americans.

How did a pluralistic nation that propounds democratic values and practices come to this?

“This” not being the authoritarian in the White House who dismisses basic constitutional principles as if they were annoying gnats, but “this” — an electorate that looks past the disrespect shown toward democratic ideals.

That haunting question has occupied the minds of Richard D. Kahlenberg and Clifford Janey, two education scholars and writers who began to take a hard look at this fundamental domestic challenge long before November’s results came in.

Kahlenberg and Janey addressed the scope of the problem in a joint Century Foundation report released in November, “Putting Democracy Back into Public Education.” The report was also discussed in an article in the Atlantic, “Is Trump’s Victory the Jump-Start Civics Education Needed?”

Janey and Kahlenberg argue that our “schools are failing at what the nation’s founders saw as education’s most basic purpose: preparing young people to be reflective citizens who would value liberty and democracy and resist the appeals of demagogues.”

They said today’s schools turn themselves inside out trying to prepare “college-and-career ready” students who can contend with economic globalization and economic competition and find a niche with private skills in the marketplace.

As for preparing them for American democracy? Raising civics literacy levels? Cultivating knowledge of democratic practices and beliefs with rigorous courses in history, literature and how democratic means have been used to improve the country? Not so much or maybe not at all, they suggest.

This has to change. And in Indiana, at least, a number of us are committed to changing it.

Women4Change Indiana is currently launching an effort to increase civic education; I am heading up a subcommittee that will encourage the formation of book clubs around the state focused upon the history and philosophy of America’s constitution. We will also be enlisting volunteers who will advocate in their local school systems for inclusion of the “We the People” curriculum, which is now entirely voluntary. Research has demonstrated that We the People has a salutary, lasting influence on students who have gone through it.

Citizens will not–cannot–protect what they don’t understand.

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