Category Archives: Constitution

Paging Civics Teachers

Where are all the high-school civics teachers when you need them?

During the past few weeks, we have been treated to an absolute bonanza of constitutional ineptitude: we’ve had Dr. Laura explaining her departure from radio as an effort to get her First Amendment rights back; continuation of the ugly, ginned-up controversy over Muslims building a community center three blocks from Ground Zero; and an equally retrograde proposal to eliminate portions of the 14th Amendment, among other embarrassments.

Dr. Laura (whose doctorate, we should recall, is in physiology—not logic, and certainly not law) seems to equate the disapproval of her sponsors with denial of her First Amendment rights. Someone should gently explain to her that the First Amendment, like the rest of the Bill of Rights, is a limit on government action. It prevents the government from censoring her. Unfair as it may seem to her, her sponsors also have First Amendment rights—and in this case, they have evidently decided to exercise them by disavowing her message.

That’s the problem with those darn constitutional rights—people who disagree with us have them too.

Aside from the southern Congressman who questioned whether Islam is “really a religion,” those who oppose allowing Muslims to build a community center and mosque three blocks from Ground Zero have generally conceded that the Constitution gives them the right to do so. Instead, they have fallen back on what First Amendment lawyers call the “heckler’s veto” argument. The “heckler’s veto” was most prominently used in the 1950s, during the Civil Rights movement. When Martin Luther King would ask for a permit to make a speech in a public venue, the city or town would argue that allowing the speech was likely to cause a civil disturbance and thus the permit should be denied in order to protect the public’s safety. Courts weren’t receptive to the notion that some people’s rights should be held hostage to other people’s hostility; nevertheless, opponents of the mosque argue that it is “insensitive” and “offensive” to build near the neighborhood where the Twin Towers went down (and just down the street from the Pussycat Lounge strip club).

When we come to proposals to amend the 14th Amendment, there’s good news and bad news. The good news is that some of our dimmer political actors have noticed that it exists. It wasn’t all that long ago that a Georgia governor denied that the Bill of Rights applied to the states—a rather clear signal that he hadn’t encountered this particular Amendment. On the other hand, there is something surreal about watching people who claim to revere the Constitution when their own rights are at issue blithely proposing to shred that document when other people are its beneficiaries.

It’s hard to know whether these folks are really constitutionally illiterate or simply playing cynical political games. As one pundit has wryly noted, there are two ways we can understand the meaning of the word “base” in the phrase “playing to the base.”

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Void for Vagueness

One of the most difficult constitutional principles to teach, for reasons I really don’t understand, is the rule that in order to be constituional, a law must be sufficiently precise to allow citizens to know what behaviors will be sanctioned. If a law does not meet that standard, we say it is “void for vagueness.” (This is the problem with so many “anti-pornography” efforts; one person’s porn is another person’s erotica, as Nadine Strossen once put it.)

A good example of the problem with overbroad and vague prohibitions is the patriot act provision being challenged in this case, which the Supreme Court will hear this term.

Defining Our Terms

I was going through a file earlier today, and came across an entry I wrote a couple of years ago for the Encyclopedia of the Constitution. My task was to define “civil liberty.” Sometimes, it’s good to remind ourselves what our civil liberties are–and why they matter.

Here’s what I wrote:

Civil liberty is the right of an individual to be free of unjustified government interference with his or her person, property, beliefs or decisions. In the United States, the Bill of Rights sets limits on the sorts of government interference that can be legally justified. Understanding what those limits are, why they were put in place, and how they compare to rights of citizens in other countries is central to understanding American civil liberties.

 Those who drafted the nation’s foundational documents were profoundly influenced by the philosophy of the Enlightenment, especially the writings of John Locke; they believed that the state had a moral obligation to respect individual autonomy, defined as the right of individuals to set and pursue their own moral ends. Accordingly, our constitutional system begins with the premise that government is not entitled to interfere with an individual’s behaviors unless that individual is harming the person or property of a non-consenting other. This is sometimes called the “libertarian principle.”

 The U.S. Bill of Rights protects fundamental civil liberties: freedom of speech and the press, freedom to assemble and “petititon the government for redress of grievances” (i.e., dissent), religious liberty, freedom from unreasonable searches and seizures, and a variety of other procedural protections that together constitute basic American due process guarantees. More recently, equal protection of the laws has been added as a fundamental right.

 Civil liberties (and human rights generally) are based on the belief that individuals have inherent dignity and status, simply by virtue of being human, and that government has the obligation to recognize and respect that personhood. In the U.S. legal system, unlike some other countries, civil liberties are individual in nature. The American constitutional system does not recognize group rights; ethnic and other minorities do not have rights separate and apart from those enjoyed by individual members of the group.

 At their base, civil liberties disputes all revolve around finding the proper balance between the power of the state and the right of individuals to live as they choose. This is primarily a procedural issue: who shall decide? Who, in other words, has the authority to make any particular decision, the government or the individual?

 Citizens frequently fail to recognize that the essential characteristic of our constitutionally protected liberties is this restraint on the government’s power to decide certain matters, and they therefore fail to distinguish between the act of limiting government’s power and the endorsement of a particular outcome. When a court refuses to allow an agency of government to censor a particular book, for example, the court is not endorsing the content of that book. It is upholding the principle that citizens have a right to choose their own reading material, free of government interference. When courts refuse to allow official prayer in public schools, it is not because the judges are hostile to religion; it is because parents have a right to control the religious upbringing of their children, free of government interference. The emphasis is upon how decisions are made rather than what decisions are made. In the American legal system, good ends cannot be used to justify improper means.

 The procedural nature of our constitutional system is often criticised by communitarians who believe that citizens should be more “embedded” in a shared moral framework. The negative nature of American civil liberties, where liberty is envisioned as freedom from government control, is also criticised by those who favor the addition of so-called positive rights, or entitlements, to our conception of fundamental rights, much as is the case with the U.N. Declaration of Human Rights and many European constitutions that give citizens a government-insured right to adequate housing, medical care or education.  Whatever the merits or flaws of those arguments, our particular constitutional structure was built upon a commitment to individual choice and respect for the integrity and inviolability of the individual conscience. Partially as a result, America has one of the most individualistic cultures in the world, and our legal system both reflects and reinforces that individualism.

 It is instructive to note that there was no disagreement between the Federalists and Antifederalists about the proper role of government and the nature of the so-called inalienable rights, or civil liberties, that each citizen was entitled to enjoy. Their great debate was not a dispute about the importance of guaranteeing individuals freedom from government interference; rather, these founders disagreed about the proper method of insuring that personal freedom. Antifederalist critics of the new constitution wanted a Bill of Rights, specifying the liberties that would be insulated against official action. Federalists like Alexander Hamilton, on the other hand, argued that the new national government was a creature of “delegated powers,” only, and that it therefore lacked any authority to invade personal liberties. Hamilton worried about the dangers of “enumerating,” or listing protected rights. He and others feared that the existence of a written Bill of Rights would lead future government officials to argue that if a right was not specifically listed, it was not protected. The compromise between these two arguments was the language of the Ninth and Tenth Amendments, sometimes called the “rights and powers” Amendments. Read together, they provide that enumeration of certain rights is not to be construed as denial of others, and that any powers not specifically given to the federal government remain with the states or the people.

 Originally, the Bill of Rights restrained only the federal government. Many states continued to have “established” religions until the early 1800s, and continued to enforce a variety of other laws that were inconsistent with civil liberty. It was not until after the passage of the 14th Amendment, in the wake of the civil war, that the Bill of Rights would be “incorporated” into the 14th and made binding on all levels of government.

 Civil liberties are not protected against private infringements. The Bill of Rights limits government only; unless there is “state action” (i.e., action by a unit or agency of government), there is no violation of civil liberties. Civil rights, on the other hand, are rights to be free of discrimination by private parties. Civil Rights are creatures of statute, not products of the constitution. The first federal law establishing a legally-enforcable right to be free of private discrimination in employment, housing or education was the 1964 Civil Rights Act.

When the constitution was first drafted, civil liberties were enjoyed by free white male property owners. Over the years, despite some “detours,” the American idea of liberty has expanded. Today, women, racial and ethnic minorities are entitled to the same fundamental rights as white males, and since the 1990’s, great strides toward equality have been made by members of other minorities, notably gays and lesbians.

 

 

Civic Education, Constitutional Culture and Crazy Times

Crazy times: need I elaborate? We have people showing up at Town Hall meetings with guns, and other people warning that our government wants to kill old people. We have elected officials who don’t believe in evolution and who deny the existence of climate change. We have school corporations refusing to allow students to hear a President’s speech about the importance of studying hard and staying in school. And we have so-called pundits comparing an extension of health insurance to the philosophy of Nazi Germany. The only thing we DON’T seem to have is reasonable people debating the actual pros and cons of policies that have actually been proposed.

I have to admit that my favorite moment of this latest crazy season was Barney Frank asking the woman who called him a Nazi what planet she spent most of her time on.

I know that America has gone through similar angry periods. I know that fear and bigotry are driving a lot of this, and I know that the disheartening clips we see on television represent a fairly small minority of the American public. But if you teach public policy, as I do, it can get pretty depressing.

People go to law school for a variety of reasons. While I did practice for some 17 years, I really went to law school for the same reason I later went to the ACLU and still later came to SPEA: I come from a tradition that has always been consumed by issues of fundamental fairness and social justice—and by the even more fundamental question that lies at the root of all political theory, “How should people live together?” Especially in the United States, where we are diverse across so many dimensions, how do we bridge our differences and learn to participate as members of a distinctively American community? How do we live together?

All constitutions and legal systems are efforts to answer that question. I’ve explored these themes in most of my publications, and they have been absolutely central to my last two books: God and Country: America in Red and Blue; and Distrust, American Style: Diversity and the Crisis of Public Confidence . Those books in particular grew out of my efforts to understand why Americans so often seem to occupy different universes—or as Barney Frank might say, why we seem to live on different planets.

My research agenda is best described as an exploration of American constitutional culture. The investigation of “constitutional culture” has a considerably broader scope than legal analysis; it focuses on the ongoing dialectic between a society’s legal norms and the broader culture within which those norms are situated and must be understood. To put this in proper academic terms, I am concerned with the operation of constitutional values in a radically heterodox culture, and in tracing the effects of that interaction on policy choice and contestation.

Decisions made by those who designed our constitutional architecture have shaped our contemporary definitions of public and private, our notions of governmental and personal responsibility, and our conceptions of human rights. They dictate the manner in which we frame civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices have been constitutive of a distinctive American culture.

My research involves the exploration and explication of those connections, from the more obvious relationship between constitutionalism and public administration, to the ongoing tension between majoritarianism and individual rights, to the intersection of religion and government, to the mutual dependence of governmental and nonprofit agencies, to more subtle effects of the constitutional culture on policy areas like health and human services. This is the common thread that runs through all of my research publications and most of my other writing.

I’ve always been interested in the operation of the First Amendment religion clauses, but I became fascinated by the religious roots of our policy preferences when I had a Ford Foundation grant to study Charitable Choice legislation—what eventually became President Bush’s “faith-based” initiative. My research team was trying to come to grips with what should have been a pretty simple question: what’s new? Religious organizations had contracted with government for decades, after all—Catholic Charities, Lutheran Social Services, Jewish Welfare Federation, even the Salvation Army.  We eventually came to understand that proponents and opponents of the initiative had diametrically different ideas about what “real” religion looked like, as well as very different cultural lenses through which they analyzed the causes of poverty. Those  cultural differences, in turn, were rooted in religion and religious ways of making sense of the world. And while some of those attitudes are visible, many others aren’t—not even to the people who hold them.

Let me explain what I mean by that. The way religion influences some policy debates is pretty obvious: arguments over “culture war” issues like gay rights, abortion and the death penalty are quite explicitly based on religious beliefs. What I was interested in was the far less visible influence of religiously rooted culture on policy preferences in areas where we don’t usually recognize a religious component to the debates. I wanted to understand the cultural antecedents that shape contending positions in areas like economic policy, environmental policy, foreign policy and criminal justice policy.

In other words, I wanted to see whether and to what extent our public conflicts over these seemingly secular policies have unrecognized religious roots. 

When I began my research for God and Country, I had two related questions: how do Americans’ different religious “roots” shape our approaches to ostensibly secular public policies; and—more critically—how do those of us who live in different realities learn to communicate with each other? Can we find sufficient common ground to make a more productive politics possible?

One of the most helpful explanations of the roots of our different realities was written by a legal scholar named Frank Lambert. Lambert differentiated between the Planting Fathers–the Puritans and Pilgrims who originally settled the colonies–and the Founding Fathers, who gave us our constitution and legal system. The roughly 150 years between these two groups  of progenitors was marked by the intellectual paradigm shift we call the Enlightenment. The Founders were enormously influenced by the Enlightenment definition of liberty as individual freedom from government interference with our right to self-definition. The Puritans defined liberty as “freedom to do the right thing,” as their religion prescribed it. We still have Puritans, just as we have modernists who have been shaped by the Enlightenment.

 As I wrote in the final chapter: “The question we face is quite simple: what do we do? If our understandings of the nature of liberty and our very perceptions of reality are at odds, if our policy disputes are inescapably intertwined with our incompatible conceptual paradigms, how do we talk to each other? How do we live together? How do we forge a working political community, and make coherent public policies? Can we ever hope to reconcile our “inner Puritans” with our Enlightenment rationalism?

There is general agreement that America needs a shared paradigm—a culturally-endorsed mythos or “civil religion”. The ongoing conflict is over the form that such a civil religion should take. The Puritans, harking back to the Planting Fathers, want a national narrative that portrays America as an unequivocally “Christian nation” although they do not necessarily agree upon the form such a Christian nation would assume or the rules it would impose. The modernists want an open and tolerant polis where diversity and civility are prized and empirical evidence forms the basis for national policy decisions, although—again—modernists have competing notions about the content of social norms appropriate for a diverse society.”

In God and Country, I explored what you might call “worldview” diversity. My most recent book, Distrust, American Style, looked at racial and ethnic diversity. That book was triggered by a recent article by Robert Putnam, in which he reported findings from a large-scale social capital study. Putnam found that over the past decades, Americans have become less trusting of each other; he also found that as diversity increases, our trust in our neighbors—what he calls “generalized social trust” declines. Social scientists warn that this erosion of interpersonal social trust has very negative implications for our ability to govern ourselves.

 I do not dispute Putnam’s raw data, but I interpret it quite differently. In Distrust, I argue that—partly because of the complexities of modern society, and partly because of specific attributes of American political and constitutional culture—“generalized social trust” is heavily dependent upon our ability to trust our social and governing institutions. If my hypothesis is correct, the cure for what ails us does not lie in limiting immigration, building a wall between the United States and Mexico, or passing “English Only” laws. The remedy is to make our governmental, religious and civic institutions trustworthy again. And—as I also argued—we can’t do that without recognizing the importance of government’s role as an essential “umpire,” enforcing the rules of fair play and setting the standard for our other institutions, both private and nonprofit.

 Distrust is a political book, although I drew on scholarship and research from a number of disciplines. I say it is political because my argument  posits the importance of trustworthy political and legal structures to our ability to live peacefully and productively in an increasingly pluralistic society; and because it incorporates a political perspective—not in the sense of partisan politics, but in the larger sense of being grounded in a particular set of political questions, and informed by a liberal democratic worldview.

As I outlined the central inquiry of the book in the introduction: “Is it increasing diversity that threatens the social and cultural solidarity Americans require, or is it failures of our governing institutions? That is the central question I explore in the pages that follow. Any effort to answer that question implicates many others: what are the attributes and cultural norms that Americans really need to share?  Why? Do different kinds of diversity, or different amounts, have different effects upon our common civic culture? What is culture? What is “social capital” and why do we need it? Although I make no pretense of providing answers to all of these questions, I do hope that some of the analysis in the pages that follow will provide an entry point, at least, into further exploration of these and related issues. 

In what follows, I lay out the parameters of the growing and acrimonious debate about the effects of America’s growing diversity, focusing first upon recent scholarship suggesting that ethnic diversity increases social distrust (findings that inadvertently give credibility to closet racists, not to mention scolds like Lou Dobbs, Pat Buchanan and the other voices loudly urging policymakers to build fences around the country to keep “them” out). I then turn to a discussion of the substantial research that raises a set of different questions about social trust, or that contradicts the conclusions being drawn. It is important that we ask the right questions about social trust in the context of our growing diversity, because this is a genie that has escaped the bottle. Diversity is a fact of modernity; it is not going away. We aren’t going to live in an America that is hermetically sealed off from the rest of the world, and we aren’t going to maintain even the degree of racial and economic segregation that continues to characterize many of our neighborhoods.  If there is one thing researchers all agree on, it is that America is going to experience more diversity of all sorts, not less. Furthermore, our understanding of what diversity is will continue to change: previously marginalized groups will emerge to press for equality and recognition; religious groups will continue to divide and subdivide; people of different races and ethnic backgrounds will continue to marry and their children will not fit neatly into the demographic categories to which we are accustomed. The task at hand is to manage our differences within a more generous, more capacious understanding of who “we” are.”

Given the title of this talk, it probably won’t surprise any of you that in both of these books, a major element of my concluding recommendations—a major part of my answer to the question “what should we do”—was “improve civic education.”  

Everyone talks about education—it’s like the weather—but the reason most of us start there is because education is widely seen as a pivotal, absolutely essential element of any solution to our civic woes. For purposes of this discussion, however, I mean something that is both more and less than what goes on in the nation’s schoolrooms. Americans are woefully, embarrassingly ignorant of the history and premises of our constitutional system. (I’ve gotten used to students who’ve never heard of the Enlightenment, but a couple of years ago a student asked me “Who’s James Madison?”) A poll a few years ago by the Constitution Center concluded that Americans “revere” the Constitution, but have absolutely no idea what is in it. (Much, I suspect, like the Bible.)

When I was at the ACLU, I was constantly faced with one of the more unfortunate consequences of that profound ignorance. People without an understanding of our legal system experience constitutionally-required state neutrality as “bias” favoring “the other side.”  So failure to allow government to shut down a “dirty” bookstore or remove an “indecent” book from the local library is seen as a social endorsement of smut; failure to prevent a Klan rally is decried as promoting hatred; allowing students to pray around the flagpole before school is trumpeted as evidence of the erosion of separation of church and state. Without a basic understanding of the concept of state action and the BORs limits on majority rule, citizens misunderstand both the role of the judiciary and the context within which judges render their decisions.

The recent confirmation hearings for Justice Sotomayor are a great example. A judicial nomination should at the very least be an opportunity to demonstrate to the American public how the judicial process really works. Instead, as legal scholar Howard Wasserman wrote, “The Second Circuit rejected a Second Amendment challenge to state gun-control legislation? That shows Judge Sotomayor ignores the Second Amendment—no discussion or consideration of why she reached that conclusion (hint: It was mandated by old Supreme Court precedent). The Court struck down an abortion regulation? That shows the Court is making up constitutional rights. This tactic isn’t limited to Republicans—four years ago, Democrats criticized Judge Alito as insensitive to civil rights plaintiffs based solely on who won and who lost the cases before him.”

When people don’t understand the rules, they are susceptible to arguments that those rules have been broken. The use of so-called “wedge issues” by politicians pandering to various constituencies is enabled and abetted by widespread public ignorance of very basic constitutional principles.

It is not necessary that citizens be constitutional scholars, or that they agree with every court interpretation of constitutional principles, or even that they agree with the principles themselves. But it is critical that they understand them.

American ignorance of our civic history aids and abets those who have a vested interest in disinformation. So we see fabricated—or at best, distorted—history from Puritans and modernists alike: the Puritans insist that the Founders were all pious Christians who understood themselves to be writing a Constitution for a specifically Protestant nation, while modernists insist the Founders were all Deists and Enlightenment rationalists whose decision to draft a secular Constitution was an effort to free the new country from the religious superstitions of the Old World.  An honest civic education would stress the importance of religion to the early settlers, and its continued relevance to the context within which our Constitution was drafted. It would acknowledge the “Godless” nature of the federal constitution, but it would also acknowledge that the Constitutional silence on religion was prompted as much by political considerations as philosophical commitments, and that the document’s secular nature was politically possible only because state constitutions already “established” religion.

An adequate civic education would also help citizens understand the significance of the Fourteenth Amendment. Partisans are certainly entitled to debate “states’ rights” and local control, but those arguments should begin with at least a rudimentary understanding of the historical evolution of our constitutional system.

American constitutional illiteracy is at the root of much that is wrong with our government. It fosters distrust—if you don’t know what the rules are, how do you really know whether they are being broken? How do you understand controversies over signing statements, for example?

If, as I have argued, it is allegiance to what I have called ‘the American Idea’ that makes us Americans, if it is adherence to a particular vision of human liberty and individual rights that creates unity from our diversity, then at least some degree of constitutional competence and knowledge of that American Idea is critical to our identity as a nation. In other words, if we are (in Todd Gitlin’s phrase) a country based on covenant, a voluntary country, it behooves us to know what we are volunteering for and why.

Americans will always argue at the margins; we will disagree about the application of this or that principle to new and different situations. But we need to agree on the basics. At the very least, we need to know what those basics are. If my own students are an indication, we have a lot of work to do.  And if legal and constitutional scholars don’t make this our “cause,” who will?

Can We Rescue Civic Literacy?

My research focuses on something I call “Constitutional Culture.”  The investigation of “constitutional culture” is considerably broader than legal analysis; it focuses upon the reciprocal relationship between our laws and legal norms and the broader culture within which those norms must be understood.

In other words, I study how constitutional values operate within a very diverse culture, how those values make people from very different backgrounds and beliefs into a single polity.  My research has  convinced me that widespread civic literacy—an acquaintance with the history and philosophy of our country—is critical to our continued ability to function as Americans.

I am also increasingly convinced that such civic literacy in short supply.Let me share with you the results of a study released just a few days ago by the Oklahoma Council of Public Affairs in observance of Constitution Day. The survey asked high school students questions about the United States. Here are some of those questions, and the percentage 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 ocean is on the east coast of the United States? 61

What are the two major political parities 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

Who is in charge of the executive branch? 29

This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped our contemporary definitions of public and private, our notions of governmental and personal responsibility, and our conceptions of human rights. They dictate the way we see issues of civic responsibility, and how we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices are what has created our distinctively American culture. Failure to understand and appreciate those initial commitments is failure to understand the world we live in; it is failure to understand the context of our contemporary political and policy issues. Civic ignorance explains a great deal of the craziness and conflict we see around us.

All constitutions are expressions of political theory, efforts to address the most basic question of society—how should people live together? I have explored these themes in most of my publications, and they have been central to my last two books: God and Country: America in Red and Blue; and Distrust, American Style. Those books especially grew out of my efforts to understand why Americans so often seem to occupy different universes.

Actually, it hasn’t only been these last two books. When I was asked to give this lecture, I went back and reviewed much of what I’ve written over the past 15 years or so, and I was struck by the persistence of that one question: How do we live together? My very first book was “What’s a Nice Republican Girl Like Me Doing at the ACLU?” (That was written as the GOP was abandoning its traditional roots and getting more and more…whatever it is the party has become.) It was in that book that I first explored something I called—and still call—“The American Idea.” And the best way I can explain what I do—what I teach and research—is to explain that “American Idea,” because it has been a constant theme throughout my tenure at IUPUI.

My fundamental premise is that America is more an idea than a place.

Ours was the first nation not to be based upon geography, ethnicity or conquest, but upon a theory of social organization. That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. You might argue that America is uniquely situated to thrive in a world where trade and technology are making geography increasingly irrelevant; where travel, immigration and economics are forcing diversification of even the most insular societies.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that ought to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality. Understanding them is fundamental to our ability to understand ourselves and to construct a civic and civil society.

I wasn’t suggesting that the founders spoke with one voice, or that they embraced 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, the system they established wasn’t perfect, nor was it sufficient for all time. History and context matter.

Take the issue of “original intent.” There are those who believe that the role of the courts is to identify the founders’ intent and mechanically apply it—nothing more. Such a view of the judicial function arguably misreads history. In any event, it’s impossible. Whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s? And how are we to determine what that intent really was?

More to the point, constitutions are by their nature statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are enunciated. Our inquiry, properly understood, must be to identify the principle or value involved and protect it 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 –protecting expression from government interference—to this new form of communication?

The great debates between the Federalists and Anti-Federalists were about the proper role of government. That debate continues today. While we have enlarged our notion of citizenship since the constitutional convention (we now include women, former slaves and non-landowners) the framework remains the same. The overarching issue remains where to strike the balance between state power and individual autonomy.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, how you use your property. Who decides when the state may deprive you of your liberty? How do we balance government’s right 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 confer rights. We have those rights by virtue of being human. The Bill of Rights was meant to keep government from interfering with them.) Protection of individual liberty was an overriding value, to be circumscribed only when absolutely necessary.

Over the years, the individual rights secured to citizens by the Bill of Rights have come under attack from both the Left and Right. (Libertarians are right—political spectrum not a line but a circle, with authoritarians on both ends.) The Right’s argument is that the U.S. has gone “too far” toward individualism and individual liberties, to the detriment of authority and traditional morals. The Left’s theory is that we’ve gone too far toward individualism and individual autonomy, to the detriment of our sense of community, and the rights of the majority. In both views, the good of the whole (as they define it) must take precedence over the rights of individuals.

That may sound nice, but what is the “common good”? And more importantly, who gets to decide what it is? What are the “rights” of the majority? How do we determine them? When we ask those questions, we immediately see that there are two very different answers possible. In a totally majoritarian system—the system too many of my students think we have—the rights of the majority at any given time are what the majority decides they are. In such a system, the only issue will be one of accuracy and definition: what shall constitute a majority for purposes of legitimizing the use of state power? How can we be certain the votes accurately reflect citizen sentiment? Who shall have the right to vote?

In a truly majoritarian system, voters would have the right to decide what books are printed and sold, which religious practices would be tolerated, how much authority the police could exercise, and so forth. The only limits to government’s power over individuals would be those sanctioned from time to time by the voters, and those limits could be changed at any time by a subsequent vote. A truly majoritarian system would certainly reflect “community values” at any given time. It would also impose those values on those who do not share them. Holders of minority opinions, dissenters from the prevailing wisdom, would have no recognized or enforceable right to be different.

Such a system is precisely what the founders feared: it’s what they meant by “tyranny of the majority.”

The second answer to the question of majority rights is the one chosen by the founders of our republic. In the system they bequeathed us, the rights of the majority are derivative of our individual liberties; the right to participate equally with one’s peers to make those decisions which are properly assigned to majority vote; the right to be protected from those who would threaten our physical safety or otherwise deprive us of social benefits to which we are entitled; the right to have our agreements with each other enforced and our disputes mediated—all without favoritism or bias. And of course, there is the right which Justice Louis Brandeis once called the greatest right conferred by a civilized society—the right to be left alone.

History provides us with plenty of examples of what happens when the “good of the many” is piously invoked to outweigh the rights of individuals. A paraphrase from George Orwell’s Animal Farm sums it up best: Everyone is equal, but some are more equal than others.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and whom we should love. We see groups on the political left endorsing “hate speech” legislation and censorship of materials they believe to be offensive to women or African-Americans or others. Both want to use the power of the state to impose “goodness” on the rest of us. The problem is, they want to be the ones who define goodness. If they had even a rudimentary civic education, they would know that under our form of government they are absolutely prohibited from doing so. In our system, individuals have the right to make their own political and moral decisions, even when most other people believe those decisions are wrong.

When people fail to understand that the central issue is the use and abuse of power, 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. A lawyer who represents a child molester is not “endorsing” child molestation. He or she is upholding the right of every citizen to the due process of law. An insistence on a woman’s right to choose abortion is not the equivalent of a “pro-abortion” position—many women who oppose abortion nevertheless do not believe that government has the right to make that decision for individual women. An insistence upon freedom of the press most certainly does not translate into approval of anything the press may choose to publish. Voltaire said it best: “I disagree with what you say, but I will defend to the death your right to say it.” The central issue for civil libertarians is the power of the state—or the majority—to compel our behaviors or infringe our liberties. When people do not understand that, our public discourse is impoverished and ultimately unproductive.

Of course, individual rights carry with them civic responsibilities. One reason citizenship was originally restricted to landowners was the founders’ belief that citizenship required a proper understanding of one’s responsibilities, and the elitist notion that only “substantial” folks were prepared to assume the burdens of citizenship.

While the American legal system and the American media frame most issues in terms of the rights involved, the lack of emphasis on responsibilities shouldn’t obscure their importance. Our entire system depends upon the willingness of citizens to exercise responsibility: to display the public morality without which government and society cannot function. Just as the media focuses on crime, rarely commenting on the far more common incidents of lawful behavior, we tend to pay far more attention to social pathologies than we do to the fact that most Americans do continue to demonstrate the values and civic virtues necessary to the maintenance of an open and orderly society.

It is what we do when people don’t meet expectations for responsible citizenship that defines our commitment to civil liberties and the rule of law, and discloses our familiarity or lack thereof with the basic premises of American government.

Unfortunately, too many Americans who don’t know American history or philosophy  favor essentially totalitarian responses. The people you see on TV and at town halls  spouting anti-government rhetoric are the same ones who demand government fixes for things that offend them. 

 These are the people who claim parents aren’t monitoring what their kids watching on TV, so the government should ban inappropriate content. They are the people who are convinced that today’s children aren’t getting “proper” religious instruction, so the public schools—government schools—should make them pray. If movies are getting too racy, they demand that the government censor them. And on and on.

 Aside from the hypocrisy, these “easy” answers run afoul of our most basic constitutional values. People demanding these measures in the name of “American values” display an appalling ignorance of those very values.

 Civic literacy requires an acquaintance with basic constitutional principles. They aren’t mysterious or difficult. As I wrote in that first book,

  • There is the value of liberty. Americans believe in our inalienable right to hold our own opinions, to think for ourselves to assemble with our friends, to cast our votes, to pray or not—all free of government interference or coercion.
  • There is the value of equality before the law. This is not to be confused with the fuzzy notion that we are all somehow interchangeable. It is not to be confused with the belief held by some religions that all people are equally worthwhile. This is a more limited proposition—the notion that government must apply the same rules to all its citizens, that groups do not have rights, individuals do. It was a radical notion in 1776. It is fundamental to the way we understand ourselves and our society today.
  • We value the marketplace of ideas, the supreme importance of our ability to communicate with each other, unfettered by government censorship.
  • I said then that we value government legitimacy and the rule of law; I hope we still do, although we’ve come through a depressing and very damaging eight years.
  • And I hope we still value the civic virtues that are necessary to the conduct of responsible government, although some of them seem in short supply lately: honesty, courage, kindness, civility, mutual respect and tolerance.

 In a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing—these are the core values Americans have historically agreed upon. That agreement is what Americans have in common. They are the values we must teach our children.

 Let me just conclude this talk by reading from the afterword of my most recent book, which—among other things—elaborated on the importance of being able to trust our government to be faithful to our constitutional values. Those values are what create e pluribus unum: they allow us to make “one” out of our “many” in this age of dramatically increasing diversity. (As you will see, I’m still harping on the American Idea—I’m sort of a broken record that way.)

 “Most countries have gone through periods of turmoil, corruption or worse. I know of none that have escaped episodes of poor—sometimes disastrous—leadership. And as anyone who follows the news knows, democracies are hardly immune; the electoral process is no guarantee that you won’t get leaders who are ill-equipped to govern. All 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 not upon identity but upon covenant. Americans do not share a single ethnicity, religion or race. We never have. We don’t share a worldview. We don’t even fully share a culture. What we do share is a set of values, and when those whom we elect betray those values, we don’t just lose trust. We lose a critical part of what it is that makes us Americans.

Policy prescriptions and ten-point plans are all well and good, but at the end of the day, our public policies must be aligned with and supportive of our most fundamental values, and the people we elect must demonstrate that they understand, respect and live up to those values.

 As we have seen, the word “values” means different things to different people. In the wake of the agonizingly close 2004 Presidential election, pundits told us that voters had come out on November 4th to vote for “values.” What they meant by values—opposition to reproductive choice and equal rights for gays and lesbians, and nationalistic jingoism masquerading as patriotism—was the antithesis of the American values most of us really do care about. Let me be quite explicit about what I believe to be genuine American values—values that have been shaped by our constitutional culture, values that are shared by the millions of Americans who have been dismayed and dispirited by the revelations of the past eight years. They are the values that infuse the Declaration of Independence, the Constitution and the Bill of Rights, the values that are absolutely central to the American Idea.

  • Americans believe in justice and civil liberties—understood as equal treatment and fair play for all citizens, whether or not they look like us, and whether or not we agree with them or like them or approve of their reading materials, religious beliefs or other life choices.
  • Americans believe in the rule of law. And we believe that no one is above the law— most emphatically including those who run our government. We believe the same rules should apply to everyone who is in the same circumstances, that allowing interest groups to “buy” more favorable rules or other special treatment with campaign contributions, political horse-trading or outright bribery is un-American.
  • Americans believe in our inalienable right to speak our minds, even when—perhaps especially when—we disagree with the government. We understand that dissent can be the highest form of patriotism, just as mindless affirmation of the choices made by those in power can wreak untold damage on the country. Those who care about America enough to speak out against policies they believe to be wrong or corrupt are not only exercising their rights as citizens, they are discharging their most sacred civic responsibilities.
  • Americans believe that when politicians play to the worst of our fears and prejudices, using “wedge issues” to marginalize immigrants, or gays, or blacks, or “east coast liberals” (a time-honored code word for Jews) in the pursuit of political advantage, they are being un-American and immoral.
  • Americans believe in the importance of reason, the need for tolerance, and respect for evidence, including scientific evidence. We may go “off the reservation” from time to time, especially when the weight of the evidence points to results we don’t like, but eventually, Americans will place reason and compromise above denial and intransigence in the conduct of our collective affairs.
  • Americans believe, to use the language of the nation’s Founders, in “a decent respect for the opinions of mankind” (even European mankind).  
  • Finally, Americans believe in the true heartland of this country, which is not to be found on a map. The real heartland is made up of all the Americans who struggle every day to provide for their families, dig deep into their pockets to help the less fortunate, and understand their religions to require goodwill and loving kindness. The men and women who make up that heartland understand that self-righteousness is the enemy of righteousness. They know that the way you play the game is more important, in the end, than whether you win or lose. And they know that, in America, the ends don’t justify the means.

 Americans’ ability to trust one another depends upon our ability to keep faith with those values.

Life in a liberal democratic polity is never going to be harmonious. Harmony, after all, wasn’t the American Idea. Despite the dreams of the communitarians, we aren’t all going to share the same telos; at most, we will have what John Rawls called an “overlapping consensus.”[i] 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 they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When our divisions and debates are between powerful forces that want to rewrite our most basic rules and citizens without the wherewithal to enforce them, we undermine the American Idea and erode social trust.

 At the end of the day, diversity (however we want to define it) is not the problem. And that’s a good thing, because the fact is that increasing diversity is inescapable. The real issue is whether it is too late to restore our institutional infrastructure and make our government trustworthy again, whether we can once again reinvigorate the American Idea and make it work in a brave new world characterized by nearly instantaneous communications, unprecedented human mobility, and the twin challenges of climate change and international terrorism. There are hopeful signs, but the jury is still out.”

 

 

[i] John Rawls,  Political Liberalism (Columbia University Press, 1993).