A paper delivered at the Law and Society conference I attended raised some interesting points about the Citizens United decision that I haven’t seen elsewhere. While there has been a lot of criticism of the Court’s classification of corporations as people, this presentation asked a more basic (albeit related) question: what was the “speech” that the First Amendment protected?
The author argued pretty persuasively that what the founders intended was protection of an individual right of free expression. Later courts extended that to “expressive association”–meaning the right of individuals to associate with those who share their opinions and values. Thus Political Action committees should have the right to free speech, since the very act of banding together for a political purpose is in furtherance of individual expression.
By extending expressive freedom to corporations and unions formed for very different purposes–where the individuals involved arguably had very different political views–the Court arguably was disrespecting the very individual rights the First Amendment was protecting in favor of a newly created group right. Our system, however, has explicitly rejected recognition of “group rights.” For good or ill, in the United States, only individuals, singly or in expressive association, are “rights-bearing.” Citizens United thus represents a movement toward group rights at odds with the premises of our constitution.
After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.
We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.
John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.
Scholars identify eight elements of the rule of law:
Laws are necessary, and must apply to all–including government officials.
Laws must be published.
Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
Laws must avoid contradictions.
Laws cannot require people to do impossible things.
Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
Official action should be consistent with the declared rule.
Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.
If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.
Yesterday, I spoke to a high school government class, filled with bright high school seniors who have thus far escaped any meaningful encounter with the U.S. Constitution.It came as a surprise to most of them, for example, that the Bill of Rights applies only against government. So we talked a good deal about the limits on government action, and what our government can and cannot require of us.
One of the students asked about the constitutionality of the individual mandate provision of the new health-care reform law.
Now, I’m not a fan of the new law; I would have much preferred a simple “Medicare for All” approach. But there are a lot of laws I dislike, and a lot that I believe represent poor policy choices. That doesn’t make those laws unconstitutional.
There is absolutely no doubt that government could constitutionally establish “socialized” medicine–whether along the lines of Medicare for All, or another single-payer system funded out of tax revenues. The Affordable Care Act works with private insurance companies–and politically, that’s undoubtedly the only way it could be passed. But in order for the new system to work, everyone must purchase insurance. Opponents claim the government cannot force people to do so.
The bill offers subsidies to people who cannot afford insurance. It exempts people for whom the purchase of insurance would be a financial hardship. It grants other exemptions for American Indians, for those with religious objections, undocumented immigrants, incarcerated individuals, and those living below the poverty level. The rest of us must buy.
Two separate constitutional provisions allow the government to require this: the taxing power and the commerce clause.
The taxing power argument is straightforward: we either buy insurance or we pay a tax. The Commerce Clause gives Congress considerable latitude to craft “rational” means to achieve “legitimate” purposes. Opponents argue that a decision not to buy insurance is “inactivity” and that “inactivity” cannot be taxed or regulated. But as constitutional scholars have pointed out, those who choose to go without insurance–insurance that the government is making affordable for them, even subsidizing for them–are in fact doing something. They are shifting costs to everyone else. As Yale Law Professor Jack Balkin has written, they are making a decision to self-insure. That decision “games” the system and makes it more expensive for everyone else.
The individual mandate is not functionally different from our obligation to pay Social Security and Medicare taxes, or the requirement to carry auto insurance.
At the end of the day, the argument against the mandate–and the Affordable Care Act–is simple, if uninformed: I don’t like this law, therefore it is unconstitutional.
One of the great myths promulgated by the Christian Right is that the ACLU is “anti-religion” and “anti-Christian.” Those bent on demonizing the organization conveniently overlook the many cases in which the ACLU represents the rights of religious folks. When I was Executive Director of Indiana’s ACLU, it used to irritate me that we got no credit for being principled.
That is mostly because so few people understand what the principles are.
A friend just alerted me to a Virginia news item about that state’s ACLU, which has defended the right of student athletes to tape copies of the Ten Commandments to their lockers.
For people who are constitutionally literate, this position hardly comes as a surprise. If a school allows students to post items on their lockers, it cannot dictate the content of those items (other than forbidding obscenity). The school could constitutionally forbid the posting of anything at all, but if it does allow students to express themselves in that fashion, the First Amendment’s Free Speech doctrine prohibits the school from picking and choosing among the messages.
If, on the other hand, a public school posts the Ten Commandments, the school is violating the Establishment Clause of the First Amendment, because the school is an agency of government, and government cannot endorse or sponsor religion.
There’s nothing inconsistent here. The point in both cases is to limit the authority of government.
In our legal system, individuals get to decide what they say and believe, free of government interference. That’s the principle the ACLU is protecting, and it isn’t anti-religious. It’s pro-individual liberty.
The following text is a speech I recently gave to the Indianapolis Chapter of the League of Women Voters about the abysmal state of historical/constitutional knowledge in America.
When I was asked to speak, my “assignment”—or at least my intention—was to discuss one of my recent books, “Distrust, American Style.” In that book, I examined the claim made by some political scientists that America’s growing diversity has increased levels of social and interpersonal distrust. (In “academic speak,” such trust is called “social capital.”) I disagreed with that analysis, because my own research suggested a rather different villain.
My thesis was—and remains—that the toxic political culture we inhabit isn’t a result of increasing diversity. Rather, I believe it is largely an outgrowth of our loss of trust in our common social and political institutions—primarily, although certainly not exclusively, our government—and that restoring that trust is critically important if we are to make our democracy work .
You can read the book (cheap on Amazon!) and decide for yourselves whether I made my case. And I’ll be happy to elaborate during Q & A. But today, I want to talk about what I think is one of the primary reasons so many of us don’t trust our government, and I want to ask for your help—the League’s help—in addressing the problem. Let me explain.
I study how constitutional values operate within a diverse culture, how those values connect us to people with very different backgrounds and beliefs and make us all Americans. That research has convinced me that widespread civic literacy—an understanding of the history and philosophy of our country—is absolutely critical to our continued ability to function as a unified people. That research has also convinced me that the civic literacy we need is in short supply.
Let me share an anecdote that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits our policy options, and how “original intent” guides our 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 Madison’s beliefs about freedom of expression should guide courts faced with contemporary efforts to censor the internet. But a couple of years ago, when I asked a young woman—a junior in college—that question, she looked at me blankly and asked “Who’s James Madison?”
It’s tempting to dismiss this as anecdotal, but let me share with you just a tiny fraction of available research. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about the government. Here are some 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
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
There’s more—much more. Other research reveals that only 36 percent of Americans can correctly name the three branches of government. 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. The National Assessment of Education Progress reports that barely a quarter of the nation’s 4th, 8th and 12th graders are proficient in civics, with only five percent of seniors able to identify and explain checks on presidential power.
This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped our culture. They dictate contemporary definitions of public and private, our notions of governmental and personal responsibility, and our conceptions of human rights. They frame the way we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview. Failure to understand and appreciate those initial decisions is failure to understand the world we live in; it is failure to understand the context of contemporary politics and policy.
Civic ignorance explains a great deal of the craziness and conflict we see around us. People who have little grasp of American history or the Enlightenment roots of our particular approach to government are those most easily mobilized by the demagogues who populate talk radio and television.
Constitutions are expressions of political theory, efforts to address the most basic question of society—how should people live together? That is also the question that animates almost all of my work, and it is the question that’s been central to my last three books. In one way or another, those books were my efforts to understand why we Americanssooften seem to occupy different universes. (I really related to Barney Frank when he responded to a woman who characterized the Affordable Care Act as Obama’s “Nazi health care bill” by asking her “Madame, on what planet do you spend most of your time?”)
Much of what I’ve written over the past 15 years or so has revolved around 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 then—and still call—“The American Idea.”
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 an Idea, a theory of social organization, what John Locke called a “social contract” and Todd Gitlin has called a “covenant.” That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. When you think about it, the American idea should make us 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, because it based citizenship on behavior rather than identity.
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.
Now, I realize that the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, 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—and you don’t get either by reading carefully selected portions of the constitutional text on the floor of the US House of Representatives or by attending one of Michelle Bachmann’s “Constitution classes.”
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 the founders wanted to protect, and apply it to 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 free expression from government censorship—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 to 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, whether you procreate, how you use your property? Who decides when the state may deprive you of your 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 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, those individual rights have come under attack from both the Left and Right. 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 community and the rights of the majority. In both views, the good of the whole, as they define it, should take precedence over the rights of individuals.
Another way to think about this is to ask: 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 has 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 goods 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 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 common good, or 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 nicely: Everyone is equal, but some are more equal than others.
When people are ignorant of constitutional history, when they fail to understand that the central constitutional 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. An insistence on a woman’s right to terminate her pregnancy 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 on freedom of the press certainly doesn’t translate into approval of anything the press may choose to publish. 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. (I was appalled during the recent campaign for Marion County Prosecutor by a Mark Massa commercial suggesting Terry Curry was unfit to be prosecutor because he had represented criminal defendants. That commercial, in my opinion, made Massa unfit to hold office!)
The central issue of civil liberties is the power of the state—or the majority—to compel our behaviors or infringe our personal liberties. When people don’t understand that, when they don’t understand when government is empowered to impose requirements and when it isn’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive.
Civic literacy requires an acquaintance with basic constitutional principles and values. It also requires an understanding of American history and the context of our constituent documents—an accurate understanding, not a Texas-Board-of-Education understanding.
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—it is more important than ever that Americans understand their history and their governing philosophy. Our constitutional values are ultimately all that Americans have in common. It is critical that we teach them to our children.
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 upon covenant. 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, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.
At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. To put it another way, our ability to trust one another ultimately depends upon our ability to keep our governing structures true to our fundamental values, and we can’t do that if we don’t know what those values are or where they came from.
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 pit powerful forces trying to rewrite our history and most basic rules against citizens who lack the wherewithal to enforce those rules,we undermine the American Idea and erode social trust.
At the end of the day, our diversity (however we want to define it) isn’t the problem. And that’s a good thing, because that bus has left the station; the reality of the 21st Century is that our diversity will only increase. The real issue is 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 global challenges of climate change and international terrorism. It has never been more important for citizens to understand the constitutional roots of American culture.
That brings me to my request—or maybe I should call it an invitation.
Scholars and educators have expressed concern over inadequacies in civic literacy and citizenship education for a very long time. Periodically, there have been efforts to increase requirements for civic and constitutional educational content, generally in government or “social studies” classes. Most recently, in 2003, the Alliance for Representative Democracy launched the Congressional Conference on Civic Education, and evidence indicates it did have a modest effect. However, it followed the typical trajectory of these efforts, which has been an initial burst of enthusiasm followed by limited implementation. The vast majority of new initiatives have had a very limited impact; worse, some states are now reducing social studies and civics requirements in order to focus on subjects tested under the No Child Left Behind Act.
I am currently working with four colleagues on a project to address these persistent failures. We represent five different disciplines—law, social work, religious studies, bioethics and education—because all of those disciplines are adversely affected by low civic literacy. We intend to determine
what programs and curricula have demonstrated effectiveness in producing civically-literate students; and
why previous efforts at reform have lacked staying power.
Our ultimate goal is to develop a set of recommendations for basic civic education that can be both implemented and sustained.
I don’t know the structure of the League of Women Voters, nor how you decide what causes to adopt and support. But I do know that there is no organization better situated to actually improve civic literacy in this country. You are national, you are respected, you are non-partisan, and you are credible. In short, you are precisely the sort of organization that should help spearhead this effort.
I don’t have the answers to our research questions yet, and I certainly didn’t come here today with a fully-formed plan or request. I’m just throwing this out in the hopes that we might be able to work together to rebuild the base of a functioning political system—one where our disagreements are about the proper application of a commonly understood history, rather than on revisionist fabrications or lunatic worldviews posted on the internet.
If this is something the League would be willing to explore, I offer my research team’s enthusiastic cooperation.
