Category Archives: Constitution

Beating That Dead Horse….

Last night, I spoke at the Indianapolis-Marion County Public Library, addressing–what else?–the Constitution and our current governmental dysfunctions… Regular readers have seen the following arguments before…

_________________________________

Over the past several years, American political debate has become steadily less civil. Partisan passions routinely overwhelm fair-minded 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 pontificating past each other rather engaging with opponents through thoughtful public discourse.

The title of this talk is “How the Constitution Drives Policy.” I’m going to expand that a bit. In America, the Constitution certainly should drive policy, because the Constitution and Bill of Rights provide a framework for legislation and limits on the sorts of measures policymakers can legitimately enact. But I am also going to talk about the ways in which our political and electoral systems—some embedded in the Constitution and some not—are distorting Constitutional norms and undermining democratic values. Those systems are also driving policymaking—and the result is a federal government that isn’t working properly, and sometimes not working at all.

Speaking of “drivers,” I am firmly convinced that there are three primary “drivers” of the rancor and partisan nastiness that is distorting our efforts at civil communication and preventing the operation of genuinely democratic governance. One is the pace of social and technological change, especially but not exclusively the Internet and social media; one is what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government; and the third is a combination of systemic malfunctions that have left us at the mercy of what pundits have accurately described as “tyranny of the minority.”

There is not much we can do about the pace of social and technological change, beyond recognizing the degree to which people find it disorienting. Despite desperate attempts to keep things as we mis-remember they were, “Stop the world I want to get off” doesn’t work. But we can and should address civic ignorance and we can and should fix our broken political systems.

I first recognized the degree to which our schools don’t teach civics when I began teaching at IUPUI. My undergraduate students had never heard of the Enlightenment, often couldn’t define government, and had little to no constitutional knowledge. 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%

In a recent national survey, only 26 percent of Americans could name the three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them. More than a third (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment. 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. During the recent attempt by Congress to repeal the Affordable Care Act, polls found that a third of Americans didn’t know that Obamacare and the Affordable Care Act were the same thing.

Productive civic engagement is based on an accurate shared understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame our policy choices in the American system.

An acquaintance with the history and philosophy that shaped what I call “the American Idea” is critically important for understanding why we do things the way we do; when we understand the roots of our national approach to government, to civil liberties, and to civil and human rights, we are better able to decide what proposals and policies are consistent with that approach. We are also better able to hold elected officials accountable if we know what they are supposed to be accountable to.

The American Constitution was a product of the 18th 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 were worshipping and obeying the right God too. 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 was based on an Enlightenment concept we call “negative liberty.” The Founders believed that 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 know 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 individual 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 their buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the natural 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 government and the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach to individual rights and the nature of citizenship 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 rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of this or that 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, until recently we had made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation.

In addition to civic equality, however, respect for individual 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, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest. And that brings me to the systemic issues we face, and the ways in which outdated elements of our election system—some of which are rooted in the Constitution—are driving undemocratic and even destructive behaviors.

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 norms and laws shape how we understand and interpret our environments, and how familiarity with the “way things are” can obscure our recognition of systemic problems. For quite a while now, familiarity with “the way we do things” has obscured the degree to which American democracy has become steadily less democratic—and the extent to which we are denying more and more of our citizens the right to participate meaningfully in self-government.

The current operation of the Electoral College gives disproportionate weight to the votes of rural voters and those from small states, and discounts the votes of urban Americans. It’s not simply the fact that in two of the last four elections, the candidate with fewer votes won the Presidency; the lopsided influence of rural America has also given us legislation and policies that are demonstrably at odds with the desires of most Americans and arguably at odds with important Constitutional principles.

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. The Constitution allows each state to manage its own voter registration and election processes, and that facilitates a lot of mischief. Voter ID laws that target the virtually non-existing problem of in-person voter fraud intimidate and discourage poor and minority voters—and that is their real purpose.

Unequal resources have always been a problem, but ever since the Supreme Court decided Buckley v. Valeo, and 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, voices 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 parties are guilty.

You all 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 draws districts that maximize its 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 with the advent of computers, the process became far more sophisticated and precise, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around. Recently, the respected Cook Report looked at the nation’s political map, and concluded that only one out of twenty Americans lives in a competitive Congressional district.

Thomas Mann and Norman Orenstein are political scientists who have written extensively about redistricting. They have tied partisan redistricting to the advantages of incumbency, and they have also pointed out that the reliance by Congressional candidates upon maps drawn by state-level politicians reinforces 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, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even though the same party usually retained control.

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—last year, out of 100 candidates for the Indiana House of Representatives, 32 ran unopposed.  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 should be considered a civil right, partisan game-playing making elections meaningless should be seen as an assault on human rights. And increasingly, citizens see it that way. We can only hope that Gill v. Whitford, a Wisconsin gerrymandering case currently before the Supreme Court, will give us a tool we can use to put an end to partisan redistricting that disenfranchises so many voters.

It’s important to recognize that the safe districts created by gerrymandering do more than simply disenfranchise voters; they are the single greatest driver of government 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.

One consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties— especially but certainly not exclusively in the Republican party— and an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

When you combine civic ignorance with extreme partisanship, constitutional compliance gets lost.

American citizens aren’t asking “Is this proposal or law constitutional? Is it consistent with America’s distinctive approach to the proper role of government and the rights of the individual?” Instead, too many of us approach our political affiliations in much the same way as we do our favorite sports teams. Rather than asking whether a proposal or law is consistent with America’s constitutional philosophy, or even whether it advances the common good, Americans ask “Is this good for my team?”

We have substituted tribal loyalty for constitutional fidelity.

For a number of years, social scientists have tracked 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, basic understanding of what our particular Constitutional system requires.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about. We aren’t having disagreements at the margins between well-informed people who agree on basic facts. We are having tantrums, thrown by people who surf the internet for confirmation of their preferred realities.

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules cover, how should they be made, who should get to make them and how should they be enforced? Those who crafted our Constitution came up with certain answers to those questions, and if we are to communicate with each other, we need to know what those answers were.

The Constitution our founders created reflected their assumptions about human nature and accordingly, privileged certain values—values that need to be explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our understanding of public morality.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods like the one we are experiencing now are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, and a legal system that emphasizes the importance of fair processes–and when our elected officials aren’t obeying those norms, when they are distorting and undermining the underlying mechanics of democratic decision-making, our government can’t function properly.

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

When it comes to accountability and trust, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without shared ground—without trust in a common understanding of our nation’s foundations and commitments– we cannot have civil dialogue, let alone political agreement. Without it, we can’t repair our broken government.

If we are to rescue our electoral systems, restore our democratic norms, and come together as an American community rather than a collection of warring tribes, we have to start where this nation started—with the Constitution. We need to inform ourselves—accurately–and we need to insist that those political figures who love to whip a small copy of the Constitution out of the pockets of jackets with flag pins on the lapels actually understand what that document means, and where it came from—and that they behave in accordance with its values and principles.

It may be that this very difficult time we are going through is a test. If so, we’re in danger of failing. We Americans need to get our act together before the bell rings. The way to make America great is to make America live up to its Constitutional commitments and principles.

Thank you.

Comments

Under The Radar

The Trump administration’s daily assaults to American laws and norms have produced a sort of outrage fatigue in many of us. That can be dangerous.

As we hold our collective breath and cross our fingers–hoping that Muller’s investigation will provide enough evidence of criminality and/or treason to make impeachment imperative, or for the Democrats to regain control of Congress in 2018, or (even less likely) for Republicans in the Senate to put the national interest above partisanship– we have difficulty keeping up with the multiple ways this administration is undermining the rule of law and weakening democratic norms.

The Resistance needs a strategy that distinguishes between horrific decisions that can be reversed if and when sanity returns to the Oval Office (or Republicans in Congress grow a pair), and those that will have profound and long-lasting negative effects on our constitutional system. We can afford to bide our time on the first category–although a lot of people will be hurt in the meantime –but we have to be absolutely ferocious in resisting measures that will damage the country in the longer term.

The media has highlighted Trump’s failure to fill hundreds of second-and-third level positions in his administration. That failure is further evidence of the ineptitude of the current White House, but it is also a blessing in disguise. (Case in point: the current nominee for Chief Scientist at the Department of Agriculture is not a scientist; he’s a right-wing talk show host. Better vacancies than filling an administration with such people. ).  An administration that cannot function properly cannot do as much damage as one that efficiently pursues counterproductive policies.

At the same time, the media has been insufficiently alert to Trump’s alacrity in filling judicial vacancies. A recent report from Huffington Post began:

Thursday was a good day for Amy Coney Barrett. A Senate committee voted to advance her nomination to be a federal judge.

It wasn’t a pretty vote. Every Democrat on the Judiciary Committee opposed her nomination. They scrutinized her past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that’s defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

But Republicans don’t need Democrats’ votes, and now Barrett, a 45-year-old law professor at the University of Notre Dame, is all but certain to be confirmed to a lifetime post on the U.S. Court of Appeals for the 7th Circuit — a court one level below the Supreme Court.

Barrett isn’t the only Trump nominee who is likely to upend settled Constitutional principles.

Consider John Bush. The Senate confirmed him in July, on a party-line vote, to a lifetime post on the U.S. Court of Appeals for the 6th Circuit. Bush, 52, has compared abortion to slavery and referred to them as “the two greatest tragedies in our country.” He has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

The Senate also confirmed Kevin Newsom, 44, to the U.S. Court of Appeals for the 11th Circuit in August. He wrote a 2000 law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the 1857 decision upholding slavery. He also argued in a 2005 article for the Federalist Society, a right-wing legal organization, that Title IX does not protect people who face retaliation for reporting gender discrimination. The Supreme Court later rejected that position.

Ralph Erickson, 58, was confirmed to the U.S. Court of Appeals for the 8th Circuit in September. As a district judge in 2016, he was one of two judges in the country who ordered the federal government not to enforce health care nondiscrimination protections for transgender people.

Judicial nominees yet to be confirmed have supported discrimination against LGBTQ people, the “personhood” of fetuses, and a state’s right to criminalize “consensual sodomy.”

If Trump has been dilatory in filling administrative posts, he’s been an Energizer Bunny when it comes to the courts.  He has already nominated 17 circuit court judges and 39 district court judges, far more than his predecessors.

He’s also got more court seats to fill, having inherited 108 court vacancies ― double the number of vacancies Obama inherited when he took office. (That’s largely thanks to Republicans’ despicable years-long strategy of denying votes to Obama’s court picks to keep those seats empty for a future GOP president to fill–a strategy that prioritized partisan advantage over justice by overburdening federal courts and causing lengthy delays for litigants.)

Federal judges have lifetime appointments. Usually, the country benefits from the fact that these jurists are insulated against the threat of arbitrary dismissal; federal courts are currently demonstrating the great value of an independent judiciary as checks on Trump’s most autocratic tendencies.

If the administration is able to fill the federal bench with Roy Moore clones, however, we can say goodby to checks and balances and the rule of law as we have understood it.

Comments

Guns–A Meditation

Once again, Americans are talking about guns in the wake of an unspeakable tragedy. There is little I can add to the outpouring of conflicting opinions, but after digesting a fair number of them, and for what it may be worth, I will share my perspective.

Bear with me.

  • There are 300 million guns in this country. We aren’t going to get rid of them–couldn’t if we tried. Furthermore, the vast majority of gun owners are responsible people–hunters, sportsmen, people hoping to protect their homes. It’s true that a significant number of the 30,000 plus gun deaths in America each year involve those responsible owners: suicides, domestic abuse, children accidentally shooting themselves or others. These deaths are tragic, but I’d draw an analogy to highway deaths–we don’t ban or confiscate cars because they can be lethal.
  • If we continue with the car analogy, however, there are lessons to be learned. We don’t let just anyone drive; in order to get a license you must pass a test. Your license can be revoked if you repeatedly break the rules. Academics study traffic deaths and issue recommendations for making our roadways safer–and legislatures, by and large, take those recommendations seriously. With guns, Congress has prohibited government from funding research on gun violence, and state lawmakers are constantly attacking and rolling back even the most reasonable firearm regulations. Congress even refused to pass a measure that would have prohibited individuals on the no-fly list–people with demonstrable connections to ISIS–from owning guns.
  • The history and interpretation of the Second Amendment has been twisted beyond recognition. If self-proclaimed “originalists” are really interested in the original meaning of the Amendment (I have my doubts), they might find this explanation by former Supreme Court Justice John Paul Stevens edifying.
  • Stevens entire explanation should be read for a full understanding of the history of the Second Amendment and Supreme Court cases interpreting it, but a couple of paragraphs are illuminating.

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”…During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything….

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.

  • I am not and never have been a gun owner, so I will not attempt to respond to the gun lobby’s impassioned defense of an unrestricted and unregulated right to own any and all kinds of firearms. I will leave that defense to Trae Crowder, who is both more eloquent and more informed about “gun culture” than I am.
  • What I do know is that a mother should be able to take her daughter to a concert without worrying that one of them won’t live to make it home. I do know that a husband has a right to take his wife to a concert without having her die in his arms. I do know that constant, widespread anxiety about safety feeds social tensions and paranoia, and exacerbates the tribalism that is tearing this country apart.

Gun owners, please listen: Obama wasn’t going to “take” your guns. Hillary wasn’t, either. No one is suggesting the confiscation of 300 million firearms, or a law forbidding further gun sales. Funding research on gun violence, keeping guns out of the hands of people with a history of violence or mental illness, or people on the no-fly list, is not an infringement of anyone’s Second Amendment rights.

Requiring drivers’ licenses wasn’t a “slippery slope” toward the confiscation of cars, and restrictions on AK-47 ownership won’t lead to Armageddon.

Comments

What We Don’t Know…

When I give presentations like the one I recently posted, addressing deficits in civic literacy and the extent of American ignorance of our constitutional system, I often include a statistic from a 2011 survey: only 36% of Americans can name the three branches of government. Audiences tend to gasp. Only 36%! How awful!

Well, the Annenberg Public Policy Center has just released the results of a similar survey taken just this year, and not only has there been no improvement, the results are actually worse.

The annual Annenberg Constitution Day Civics Survey finds that:

  • More than half of Americans (53 percent) incorrectly think it is accurate to say that immigrants who are here illegally do not have any rights under the U.S. Constitution;
  • More than a third of those surveyed (37 percent) can’t name any of the rights guaranteed under the First Amendment;
  • Only a quarter of Americans (26 percent) can name all three branches of government.

When asked about rights protected by the First Amendment, most of those who could name at least one right connected the Amendment to Freedom of Speech. But naming a right obviously isn’t the same thing as understanding it: 39% of those respondents said they support allowing Congress to stop the news media from reporting on “any issue of national security” without government approval.

I’m sure Donald Trump believes that any reporting critical of him is an “issue of national security.” Definitions can be so pesky….

I know I sound like a broken record, but civic ignorance matters. It’s one thing to have different policy preferences and to engage in debates about the relative merits of those preferences; such debates can be illuminating and productive. Most of us have been in situations where we are “schooled” by a person arguing for a different approach to an issue; sometimes, we’re introduced to information we didn’t have, other times to arguments we haven’t considered. Even if we don’t change our own preferences, we appreciate where others are coming from.

However, when one party to a political argument is clearly ignorant of the most basic premises of American government, we don’t consider that person’s point of view legitimate. Those who know better will discount the person, and any organization he or she might represent, in the future.

The problem is, too few of us know better; as a result, we can often be persuaded by arguments that a civically-literate person would recognize as specious.

When Americans don’t know squat about their government, democracy doesn’t work. Voters don’t have the tools to evaluate candidates’ platforms or assess their fitness for office. They can’t hold public officials accountable, because they don’t know what those officials are supposed to be accountable to. 

Activists, candidates and office holders who don’t know what they’re talking about ought to be marginalized for that reason– but as we have seen, when Americans dismiss knowledge and expertise as “elitist,” even profound and obvious ignorance is no longer an electoral handicap. Today, too many Americans don’t vote for the person they consider most knowledgable and thoughtful; they vote for the demagogue who is most closely channeling their bigotries.

We are about to discover that the old adage was wrong: what you don’t know can hurt you.

Comments

Constitution Day

This year, I was asked to give a Constitution Day lecture at Xavier University. This is what I said. (Warning: this is long, and I’ve said a lot of it before…)

_______________________________________

Does Civic Ignorance Really Matter?

The title of this talk is a question: does civic ignorance matter? It will not come as a surprise to you that I think it does—that I believe the consequences of living in a system you don’t understand are negative not just for the health and stability of America’s democratic institutions, but for individuals. After all, if you don’t know how your government works, or who does what, you are at a decided disadvantage when you need to negotiate the system. (If you take your zoning problem to your Congressman, or your Social Security problem to your Mayor, you’re going to waste a lot of time.)

Today, however, I want to focus on the ways in which low civic literacy harms the nation, and talk a bit about what you need to know in order to be an informed voter or even better, an involved civic activist.

Let me begin with an observation. What we call “political culture”–including the public conversations that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And in case you didn’t notice, I’m old. There are lots of theories about what has led us to this rather unfortunate place—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social change—and during Q and A, we can talk about the different ways those elements and others contribute to the political nastiness we see all around us. But I want to begin our conversation by considering a different villain.

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

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

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

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

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

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

A few years ago, the Oklahoma Council of Public Affairs asked high school students in that state some basic questions about American government. Here are just 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%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

Who was the first President of the United States? 23%

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

And it matters.

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

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

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

That American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

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

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

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

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

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

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

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and who we should be permitted to love. We see groups on the political left shutting down speech with which they disagree, and advocating censorship of materials they find offensive. Both groups want to use the power of government to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that the Constitution absolutely prohibits them from doing so. In our system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong.

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

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

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

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

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

Let’s begin with the assault on the most basic premise of self-government in democratic systems: the value of your vote. There are a number of ways politicians in both parties suppress voter turnout, but the single greatest threat to the value of your vote is gerrymandering.

Today, thanks to partisan redistricting, what we call gerrymandering, only one out of twenty Americans lives in a genuinely competitive Congressional District.

Think about that for a minute.

America has become a country where—as Common Cause puts it—legislators are choosing their voters rather than the other way around.

You probably know how gerrymandering works; after each census, state legislatures draw new legislative and Congressional districts to “even up” the number of voters in each district. The party that controls the legislature gets to control the process, and its goal is to draw as many “safe” seats as possible–more for the party in power, of course, but also for the minority party, because in order to keep control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. Legislators of both parties have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence! —but it was pretty hit or miss until computers came along to make the process far, far more precise.

Neighborhoods, cities, towns–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t been voting to the polls, there would be far fewer safe seats.)

Some of the results of this partisan process are obvious:

Safe districts create unresponsive legislators. If you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant. Safe seats allow politicians to scuttle popular measures without fear of retribution.

These are a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine government legitimacy and are inconsistent with democratic self-government.

First of all, lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when 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? Why volunteer or vote?

It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate or sacrificial lamb who offers no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.

We hear a lot about voter apathy, as if it were a moral deficiency. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to move in down the street! Rational people save their efforts for places where those efforts can actually make a difference, and thanks to the increasing lack of electoral competitiveness, those places often do not include the voting booth.

Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current toxic political discourse. When a district is safe for one party, the only realistic 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 effectively 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 by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most extreme elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side. Then we wonder why they can’t compromise and get the people’s business done!

Until and unless we eliminate gerrymandering, whoever we send to Washington will be stymied by the gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the eligible voters in the district?

This year, the United States Supreme Court will hear an enormously important case: Gill v.Whitford. The Court has previously ruled racial gerrymandering—districts purposely drawn to disenfranchise members of minority groups—unconstitutional, but it has yet to strike down partisan gerrymandering, because the Justices haven’t had a test, a formula that they could rely on to show that districts were intentionally drawn to disadvantage the other party.  A couple of professors have developed such a test, and in a Wisconsin case, a three-judge federal panel applied that test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.

If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation. But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.

Gerrymandering is what we call a systemic issue, and we Americans aren’t very good at recognizing the importance of systems. We’ve recently become more aware of the way the Electoral College works, but only because in two of the last four elections, the person who won the Presidency lost the popular vote. In the wake of Citizens United, people are beginning to understand how special interests with lots of money can undermine democracy. And in the wake of Charlottesville, we can see what happens when we fail to address and reject the systemic racism that too many people have accommodated for too many years.

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

So—to answer the question I asked at the beginning of this talk, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without that shared ground—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we can’t repair our broken government.

My generation has failed yours. It will be up to you and your peers to reclaim, revitalize and restore the American Idea—to make this the country we like to believe it is: one nation, with liberty and equal justice for everyone.

We have a long way to go.

Thank you.

Comments