Category Archives: Constitution

Well Mike, We Always Suspected You Skipped Con Law in Law School…

Courtesy of Talking Points Memo, we learn that Mike Pence not only remains firmly wedded to “The Donald,” that he not only applauds Trump’s creepy performance in the second debate, but that he chose as one of Trump’s “finest moments” the declaration that has received shocked criticism from people on both sides of the aisle.

Mike Pence on Monday morning applauded Donald Trump’s comment during the Sunday night debate that if he is elected president, he will have a special prosecutor investigate Hillary Clinton and that she will “be in jail.”…

“I thought that was one of the better moments of the debate last night,” the Republican vice presidential nominee continued.

As Politico–among others– noted

Donald Trump’s debate-night vow to appoint a special prosecutor to investigate Hillary Clinton’s email setup and put her “in jail” provoked a sharp blowback from former U.S. prosecutors, who said Trump’s view of the Justice Department serving the whims of the president is antithetical to the American system.

While presidents appoint the attorney general, they do not make decisions on whom to prosecute for crimes — and were Trump to do so, prosecutors warned, he would spark a constitutional crisis similar to that of the “Saturday Night Massacre” in the Nixon administration. In that case, Nixon attempted to fire the prosecutor investigating the Watergate scandal, and the top two Justice Department officials resigned on the spot….former Republican appointees to senior Justice Department posts used words like “abhorrent,” “absurd” and “terrifying” to describe Trump’s threat to use the legal system to imprison Clinton.

And from the New York Times (which I’m pretty sure Pence never reads):

When Donald J. Trump told Hillary Clinton at Sunday’s presidential debate that if he were president, “you’d be in jail,” he was threatening more than just his opponent. He was suggesting that he would strip power from the institutions that normally enforce the law, investing it instead in himself.

Political scientists who study troubled democracies abroad say this is a tactic typical of elected leaders who pull down their systems from within: former President Hugo Chávez of Venezuela, President Robert Mugabe of Zimbabwe, the fascist leaders of 1930s Europe.

Those of us who live in Indiana have learned that, despite ostensibly having attended and graduated from law school, Governor Pence remains…let’s just say “unaquainted” with the U.S. Constitution. His efforts to substitute (his version of) biblical authority for legal and constitutional principles have repeatedly been struck down; the most recent lesson on constitutional governance was delivered by conservative jurist Richard Posner, delivering the Seventh Circuit’s unanimous opinion that the Governor could not exclude Syrian refugees from the state:

[The state’s] brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States.”

The policy “is discrimination on the basis of nationality,” Posner concluded in a section that compared Pence’s argument to the argument of a person claiming that it would not be racial discrimination to say that one ‘wants to forbid black people to settle in Indiana not because they’re black but because [the person]’s afraid of them.’”

As Politico noted,

Judge Posner’s opinion was joined by two conservative legal stalwarts, Judge Frank Easterbrook and Judge Diane Sykes — yes, the same Judge Sykes who’s on Trump’s Supreme Court shortlist.

It would be nice to think that Pence might learn something from his repeated losses, but as we all know, he doesn’t believe in evolution, either. It shows.

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Happy Constitution Day

September 17th is Constitution Day–an appropriate time to consider how well Americans understand that important document.

Diana Owen is a widely respected professor at Georgetown University. She recently fielded a survey intended to measure public agreement with the basic ideas of the Declaration of Independence and the Constitution. Questions were posed in “everyday” terms and did not identify their sources.

A press release from the Center for Civic Education, reporting on the research, was titled “Survey Reveals Americans Do Not Know Much About the Constitution, But Support Its Basic Ideas.”

I guess that support should comfort us, although the widespread ignorance of our most basic legal framework sure doesn’t.

Today, the Center for Civic Education, in cooperation with Professor Diana Owen of Georgetown University, released the results of a Constitution Day survey that found that only 14 percent of Americans think they know a lot about the Declaration of Independence and the U.S. Constitution. The survey indicated that although Americans might not be well-informed about these documents, there is widespread agreement on many of the basic ideas they contain that transcends party affiliation, political ideology and demographics. Survey items include basic ideas in the documents without identifying their sources.

Some of the survey’s key findings:

  •  Only 14 percent of Americans think they know a lot about the Declaration of Independence and the Constitution and 22 percent indicate that they know very little or nothing about them. Furthermore, 64 percent say they know some things about these documents. Overall, 86 percent of respondents are aware that they are not well-informed regarding the foundational documents.
  • Although 86 percent of respondents are not well-informed about these documents, the vast majority support the basic ideas and goals of American government in the Declaration of Independence. For example, a large majority (92 percent) believe it is a responsibility of government to ensure political equality and 86 percent believe it is a responsibility of government to further the right to the pursuit of happiness by providing equal educational opportunities for all students.
  • Large majorities of Americans support the establishment of justice (78 percent) and promotion of the general welfare (75 percent), which are among the six purposes of government set forth in the Preamble to the Constitution, even when party affiliation, political ideology and demographics are taken into account.
  • More than 80 percent of Americans support elements of the Constitution and its amendments that protect the rights to freedom of belief and expression; the protections of due process of law for the rights to life, liberty and property; and political equality.
  • Significant majorities of Americans think that government is doing a good job protecting such rights as freedom of belief and expression.

I suspect that much of the support for these broad principles, however heartfelt, is superficial; for example, virtually all Americans support “liberty,” but different constituencies have very different definitions of what genuine liberty looks like. (Is it the “liberty” to refuse to bake cakes for gay couples?)

A majority of respondents (78 percent) agreed that a main purpose of government should be to promote the welfare of all citizens, although only 30 percent think that government is doing a good job of that. (Unsurprisingly, Republicans (35 percent) were more inclined than Democrats (29 percent) and Independents (26 percent) to feel that the government’s promotion of the general welfare is adequate.) A majority recognized that the benefits and burdens of society–employment opportunities, educational opportunities and income and taxation– are not distributed fairly (60 percent).

Interestingly, nearly half of all respondents also recognized that Americans are not treated equally under the law today.

Charles Quigley, executive director of the Center for Civic Education, stated, “The good news is that the social contract is largely intact as reflected by substantial agreement among the people about the central purposes government should serve despite what appears in daily media reports to be a high level of polarization and unwillingness of opposing parties to enter into civil dialogue, negotiation and compromise….

“It is encouraging to note that the survey revealed that the greater respondents’ knowledge of the Constitution, the greater the acceptance of its basic ideas. This clearly points to the need to implement effective programs in schools and universities as well as programs for adults that educate people about the principles and values embedded in our founding documents. (emphasis added)

The unanswered–perhaps unanswerable–question is: if knowledge of the Constitution diminishes further, will we lose our already questionable ability to function as a cohesive society?

Happy Constitution Day…..

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What To Do, What To Do…

I’ve told this story before, but it bears repeating.

I teach my law and public policy classes through a constitutional “lens,” because I am convinced that students must understand America’s fundamental legal framework and philosophy if they are to approach policy proposals with the necessary analytic tools.

I often introduce the Free Speech provisions of the First Amendment with a purposely silly question: “What did James Madison think about porn on the Internet?” Usually, the student I’ve asked will laugh and respond that Madison never encountered the Internet; that then allows us to discuss the expressive values Madison and other Founders were trying to protect, and the ways in which modern courts attempt to protect those values in a world that the Founders could never have envisioned.

But several years ago, when I asked a student that question, she looked at me blankly and said “Who’s James Madison?”

That experience–unfortunately, not an outlier–led to the establishment of the Center for Civic Literacy at IUPUI, (CCL) and research to determine how much Americans really know–or don’t– about the country’s history, economy and legal system, and the political and social consequences of low levels of civic knowledge.

If anyone doubts the corrosive effect of civic ignorance, I suggest watching this year’s political campaigns.

There is clearly little we can do that would immediately improve the abysmal state of public discourse as it is practiced today, but in addition to research into the causes and consequences of civic ignorance, CCL has been working with the League of Women Voters and the Indiana Bar Foundation, among others, to produce materials that we hope will help address the issue going forward.

The Center and the Bar Foundation have published a book called “Giving Civics a Sporting Chance.” The book points to the pervasive social and cultural supports that reward knowledge of sporting events and trivia, and makes the argument that we need to institute similar mechanisms that would reward and increase civic knowledge.

Young Americans who can tell you who threw out the winning pitch in the 1939 World Series are capable of answering equally obscure questions about the Articles of Confederation, but American culture privileges sports knowledge over civic literacy. The book suggests a number of mechanisms for bringing civics “into the sunlight”–from relatively “do-able” measures like increasing participation in the excellent “We the People” curriculum and competition, to “wouldn’t it be wonderful” suggestions for a new GI Bill that would reduce student debt while increasing civic information and engagement.

Information about the book’s availability will be posted to the Center’s website shortly.

Another publication–originally an ebook, but just this month available in paperback--is a mere 36 pages of essential civic information. Titled Talking Politics? What You Need to Know Before Opening Your Mouth, it includes “What everyone should know about the Constitution and American legal system,” “What everyone should know about the American economic system,” “What everyone should know about science,” and “What everyone should know about politics.”

Obviously, all of those subjects cannot be comprehensively covered in 36 pages, but the book provides basic facts and settled definitions that can allow people to argue for their policy preferences more productively and convincingly.

I encourage readers of this blog to examine these two products, and if you find them useful–and I think you will–disseminate them broadly. Discuss the recommendations in “Giving Civics a Sporting Chance”with school curriculum officials. Read Talking Politics in your book club. Whatever.

I think thoughtful Americans of every party and political philosophy will agree that–whatever else America’s current election campaign may signify–the nomination of Donald Trump by a major party could only occur in a country where significant numbers of citizens have no understanding of the way their nation’s government works, or the rules that constrain elected officials.

That nomination should be a wake-up call.

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A Really Important History Lesson

At Dispatches from the Culture Wars, Ed Brayton highlighted a truly important segment from Rachel Maddow’s show, in which she traces America’s history of xenophobia and anti-immigrant hysteria.

Many readers of this blog are familiar with the broad outlines of America’s nativist history–the periodic eruptions of movements like the Know-Nothings and later, the Klan. But in this explanatory segment, Maddow ties these episodes to the nation’s political history in a way that I, certainly, had never considered, and shows how Donald Trump’s increasingly explicit and ugly fact-free rhetoric fits into that history–and what it means for the Republican party and the American two-party system.

No summary of this extraordinary history lesson could do it justice.

Watch it.

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Protecting Article XII

Well, Trump visited central Indiana yesterday, for a fundraiser and rally. It only increased the intense speculation about whether he would add Indiana’s embarrassing Governor to his ticket.

In many respects, they would be a political odd couple, but they do have one thing in common: neither of them appears to have much familiarity with, or regard for, the Constitution.

In his recent meeting with Congressional Republicans, for example, Trump emphasized his readiness to protect America’s Constitution–including Article Twelve.

Of course, there is no Article Twelve.

We probably shouldn’t be surprised; to the extent that this particular candidate has policies, a significant number of them are patently unconstitutional. Trump says he would authorize torture, round up and deport immigrants (no mention of due process, which is evidently not a phrase in the vocabulary of the man who brags that he has lots of “good words”), and he has proposed “passing a law” to eliminate the 14th Amendment’s birthright citizenship provision.

It’s mind-boggling that any citizen of the U.S. knows so little about America’s legal framework that he thinks passing a law can change constitutional mandates. (Even Pence and my least civically knowledgable students know better than that.) The fact that the Presidential nominee of a major political party is so ignorant of the most basic rules that constrain all elected officials–rules that he would be charged with defending and obeying if, God forbid, he should win–is stunning.

I know I am a broken record on the subject of civic literacy, but the ability of a man like Trump to garner 13 million votes in the primaries is at least partially attributable to the fact that too many Americans know little or nothing about the country’s legal framework or governing architecture.

The American Constitution was not handed down by God (although some on the far Right actually have made that claim). There are good reasons to consider amending parts of it, and serious political figures and scholars who advocate for such changes–but no credible source suggests that the Constitution is irrelevant and can simply be ignored.

What separates successful countries from theocracies, autocracies and banana republics is respect for the rule of law. The basic premise of the rule of law is that laws and regulations apply to everyone. It is the obligation of all citizens–including Presidents, Governors, and all other elected officials–to follow the same rules that apply to the rest of us.

Actually, it shouldn’t surprise us that Trump doesn’t understand that. He’s lived his entire life convinced that the rules don’t apply to him, and he’s made it quite clear that, if he should be elected, he won’t let pesky rules or constitutional provisions get in his way.

That attitude and ignorance explains why citizens who are civically literate find the prospect of a Trump Presidency terrifying.

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