Category Archives: Constitution

Justice Souter

David Souter died earlier this month.

When George H.W. Bush nominated him to the Supreme Court, I watched the confirmation hearings on television. I saw a brilliant, thoughtful jurist. His purported “evolution” on the high court bench didn’t surprise me; his jurisprudence remained grounded in precedent and reverence for what I call the American Idea.

A few years after he retired from the Court, I was fortunate enough to attend a small conference on civic literacy at Harvard Law School, convened by then-Dean Martha Minow. Both Souter and Sandra Day O’Connor participated, and I was especially impressed by Souter’s remarks. I asked him if he would allow a copy to be published in the Journal of Civic Literacy –a publication of the Center I’d established at IUPUI (now IU-Indy). He graciously agreed. That was in 2013, and his observations have become even more pertinent.

Here they are.

____________________________________ 

Dean Minow: Nearly three years ago, Justice Souter gave a truly extraordinary commencement address here at Harvard, upon receiving an honorary degree. In his exploration of the tensions among the values embodied in the United States Constitution, he offered deep insights into important decision making by the Supreme Court and equally conveyed the hard work that is necessary to advance the values of democracy and freedom, individual rights, and democratic participation. We are so touched and honored by your participation here today, which I know reflects your admiration and affection for your colleague, Justice O’Connor, and also your deep abiding commitment to this subject [civics]. Why does it matter to you so much?

Justice Souter: I’ve come by stages, I guess, to the answer. I’ll take you through the stages. By the way, I should issue two disclaimers to begin with. The first is, we are talking about civics and I’m going to talk in terms of civics. But, you cannot have civics without history. So, I might just as well be making the argument for history. The second disclaimer is, I don’t mean to take positions in the pedagogy controversy. I don’t know how to teach, I don’t know where the proper midpoint is between interactive learning and book learning and participatory exercises and so on. I’m not taking a position there. Maybe with one exception, and that is, if you’re going to test in math and reading you better test in civics or it’s going to be a poor child of the curriculum.

On the question why I think it matters, as I’ve said, I’ve come to my feelings by stages and the first stage was set by Justice O’Connor at a series of conferences she and Justice Breyer sponsored in Washington, provoked by the concern for the independence of the courts. The judiciary at the time was under a lot of attack and almost from the beginning the thing we learned there was the degree of civic illiteracy. We learned the statistic, which I believe is still true today, that there are only about a third of the people in the United States who can name the three branches of government. And the lesson that everyone learned was that without some knowledge of the structure, without, frankly, some constitutional knowledge, the value of an independent judiciary is a value that makes no sense. Independent from whom? From what? Well, we know the answer. The rest of the government, etcetera.

But, the first point of focus that came to me was that without a bedrock grounding in a lot of fundamentals that my own generation did learn as kids, constitutional values will frequently make no sense because there is no context for them.

The second stage of thinking why this subject of civics matters has come as a result of the recent calls for constitutional amendment and constitutional change, which we have been getting from all corners. There have been calls for an amendment in response to Roe v. Wade, calls for an amendment in response to the Citizens United campaign contribution limitation decision, calls for change in response to the possibility of a disparity between the Electoral College vote and the popular vote, and so on. It’s pretty obvious that someone who has no idea of what we have in the Constitution to start with is in no position to make any kind of critical judgment about what we might change, whether we ought to change it, and if so what change we ought or ought not to make. Ignorance is no foundation for constitutional thinking but, like it or not, we are being asked as a country to engage in constitutional thinking. None of it may in fact lead to a formally proposed amendment, let alone a convention, but who knows. So, I guess the second point in my feeling was about what is at stake: simply the need for a foundation for critical judgment on the part of citizens.

But finally, I’ve come, to a third, umbrella position, which certainly subsumes the two stages that I’ve already mentioned. And I will warn you right now that my ultimate line is like the remarks of several other people here this morning. Let me make my point this way. The American constitutional system is in effect a constant exercise in balancing, and perhaps a precarious balancing, between two very fundamental tendencies in American society and American political organization: the tendency to fragment into pursuit of individual interests and the tendency to pull together.

I could spend a long time this morning, which I won’t, simply cataloging what seems to me the growing force of the former sort, the centrifugal tendencies that pull us apart. Just think about these.To begin with, the very nature of the United States as it has developed is a conglomeration of fragmenting tendencies. We do not have a national religion. We do not have a homogenized national private culture, as distinct from political culture. We are in fact an amalgamation. We are a patchwork. We are a nation of immigrants, and people remember where they came from, whether they look back one generation or fourteen. There is a disuniting tendency built into the very nature of the United States, and it’s not going to go away. And I don’t suppose there’s anyone who wants it to go away entirely. I don’t.

Number two, there is great force in a philosophical tenant that we like to think of as ours. It’s not a coincidence that Ralph Waldo Emerson was an American. Consider the notion of Emersonian individualism, Emersonian self-reliance. They feed a kind of admirably atomistic tendency that I suppose can be called a widely shared character, a powerful element of our scrambled culture.

Number three, we are living at a time when the class divide in the United States is growing larger and the possibility of bridging that class divide is in fact shrinking. We are at a point now where the spread of wealth disparity is greater than it has been for over a century. And it is now a very unfortunate fact of life in the United States that social mobility is greater in a number of European countries than it is in this one. Parents in the United States cannot assume that their children have a real opportunity to be better off than they were.

Number four, there is an increasingly apparent divisiveness inherent in current developments in the news media. You can cherry-pick the news you want on the device that you hold in your hand. A substantial portion of the country is not even exposed to the breadth of traditional newspapers.

And, finally, I’ll stop by simply echoing what others have said about the growing tendency toward cynicism about the processes of government for which there is a very good foundation. Too many people are realistically looking upon government as basically a clash between a public interest and more powerful interests, exerting power through lobbies financed by huge amounts of money, with the names of the people behind them being to a great extent undisclosed. These are conditions, historical and contemporary, that drive us apart and tend to disunite us. What have we got pulling on the other side? By and large, what we have pulling on the other side is an adherence to an American Constitutional system. The American Constitution is not simply a blueprint for structure, though it is that. It is not merely a Bill of Rights, though it is that, too. It is in essence, a value system, a value system that identifies the legitimate objects of power, the importance of distributing power, and the need to limit power by a shared and enforceable conception of human worth.

That value system is the counterpoise to the divisive tendencies that are so strong today, and civic ignorance is its enemy. It is beyond me how anyone can assume that our system of constitutional values is going to survive in the current divisive atmosphere while being unknown to the majority of the people of the United States. So, what is driving me right now is simply the indispensability of our increasingly unrecognized and ignored constitutional value system. Without it, there is no chance of overcoming, of surviving the polarization that everyone decries. It is only in the common acceptance of that value system that at the end of the day, no matter what we are fighting about, no matter what the vote is in Congress or the State House or the town meeting, we will still understand that something holds us together.

Ultimately, what is driving me in working for the renewal of civic education is the need to share the threatened aspirations that should mark us as people who belong together as a nation.   

___________________________________

Indeed.
 
 

Comments

Ends And Means

In governance, there are two basic questions: What and How. Our current political polarization is between the MAGA/Project 2025 ideologues who are focused on the “what,” and those of us who are intent upon protecting a Constitutional order prescribing “how.”

If there is one clear distinction between western constitutional systems, including ours, and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on process. Indeed, we might justifiably characterize our Bill of Rights as a restatement of your mother’s admonition that how you do something is just as important as what you choose to do. Sometimes, more so.

The ends do not justify the means is an absolutely fundamental American precept.

This emphasis on process–the means– is widely acknowledged by political scientists. Whatever their other debates, there is a shared recognition that the American approach to legitimate governance is procedural.  We are a nation of laws that are meant to govern how we go about ordering our common lives.

Some twenty-plus years ago, Rick Perlstein made a point about the political parties that has only gotten more apt.

We Americans love to cite the “political spectrum” as the best way to classify ideologies. The metaphor is incorrect: it implies symmetry. But left and right today are not opposites. They are different species. It has to do with core principles. To put it abstractly, the right always has in mind a prescriptive vision of its ideal future world—a normative vision. Unlike the left (at least since Karl Marx neglected to include an actual description of the “dictatorship of the proletariat” within the 2,500 pages of Das Kapital), conservatives have always known what the world would look like after their revolution: hearth, home, church, a businessman’s republic. The dominant strain of the American left, on the other hand, certainly since the decline of the socialist left, fetishizes fairness, openness, and diversity. (Liberals have no problem with home, hearth, and church in themselves; they just see them as one viable life-style option among many.) If the stakes for liberals are fair procedures, the stakes for conservatives are last things: either humanity trends toward Grace, or it hurtles toward Armageddon…

For liberals, generally speaking, honoring procedures—the means—is at the very core of being “principled,” of acting with legitimacy. For conservatives, fighting for the desired outcomes—the ends—and, if necessary, at the expense of procedural niceties, is the definition of “principled.”

In a constitutional democracy, the franchise is first among the means. Democrats generally understand our system to be one in which citizens demonstrate their preference for “ends”–for policies–at the ballot box; accordingly, they believe that the more extensive the turnout, the more legitimate the ensuing legislative mandate.

Republicans–focused on ends–disagree. As the late New Right founding father Paul Weyrich once put it, “I don’t want everybody to vote. Elections are not won by a majority of the people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” 

Over the years, that difference between ends and means has become institutionalized within the two political parties. In states with Republican Attorneys general or Secretaries of State, like Indiana, those officials work to squeeze as many minority voters from the rolls as possible.  Republican state legislatures gerrymander to the greatest extent possible,  disenfranchising thousands of urban and liberal voters. (And yes, Democrats gerrymander too, but demonstrably much less.)

These moves strike Americans who were raised with the admonition that “it isn’t whether you win or lose, but how you play the game” as “dirty pool.” But they make all kinds of sense to people who believe they are trying to save civilization from hurtling toward an Armageddon where “those people” will replace the good White Christian men that God wants in charge.

Those True Believers represent a very significant element of the MAGA base. They don’t necessarily include the party overlords, but those pooh-bas recognize that their hold on power depends upon playing to the base’s beliefs. Today’s Republican officeholders agree with Machiavelli, who said “We ought to see clearly that the end does justify the means…If the method I am using to accomplishes the goal I am aiming at, it is for that reason a good method.”

The Trump administration–with its attacks on due process, habeas corpus and the rule of law itself– is making the difference impossible to ignore.

Comments

A Constitutional Convention?

During the past couple of weeks, the subject of a Constitutional Convention has been raised twice: once during a question-and-answer session following a speech, and once via an email from a good friend. So it would seem reasonable to revisit the subject, and explain why I find that prospect–as proposed currently– horrifying.

Would it be possible to improve upon our centuries-old charter? Sure. We now see flaws that have emerged over the years, (If nothing else, there’s the Electoral College–a system used by no other country, for reasons that have become increasingly apparent…). If the idea of a reasonable review seems innocuous, however, we can be disabused of that conclusion simply by looking at the people pushing for a redo. The most prominent are ALEC (the far-Right American Legislative Exchange Council) and the Heritage Foundation. (Yes, the same Heritage Foundation that produced Project 2025.)

The goals of these and the other ideologues advocating such a convention are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

Back in 2017, members of Indiana’s legislature were calling for such a convention, and I explained my opposition. As I wrote then, proponents clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and worldviews. History suggests that’s a naive assumption.

Indiana’s proponents wanted the state to join the calls for a Constitutional Convention. They claimed that a convention could be limited to budgetary matters–to devising “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.”

Constitutional scholars disagree with the assertion that such a convention could be limited to specified goals, but even if it could be, the specified matters would open a Pandora’s box. Think about it.

Wall Street bankers could argue that financial laws are “over-regulation.” One definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; others might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid. “Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a presumably representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy I founded at IUPUI (now IU Indy), we focused on the causes and consequences of what we’ve come to call America’s civic deficit. The data we accumulated was depressing. The last time I looked at survey results, only 36 percent of Americans could name the three branches of government, and only 21% of high school seniors could list two privileges that United States citizens have that noncitizens don’t. Etc. Even bright graduate students came into my classes with little or no knowledge of American history, episodic or intellectual. Most had never heard of the Enlightenment or John Locke. They certainly hadn’t read Adam Smith. A truly depressing percentage of undergraduates couldn’t explain what a government is, and they had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

Given the Trump administration’s current attacks on the Constitution and media attention to those attacks, those percentages have undoubtedly improved, but civic ignorance is still obviously widespread. Do we really want to turn over the task of rewriting our Constitution to people who don’t understand the one we have?

Common Cause has looked at the unanswered questions implicit in these calls for a convention–questions that lay bare the dangers involved: How will delegates be chosen? Will there be any limits placed on the role of well-funded special interests in influencing the selection of delegates? How will votes be allocated amongst delegates? One person one vote? One vote per state? Something else? What kinds of changes would the convention consider? Will the Convention start with the U.S. Constitution or write an entirely new document?

The civically-ignorant and clinically-insane megalomaniac who occupies the Oval Office is currently being restrained only by the existing U.S. Constitution, which he has clearly neither read nor understood. The likely result of a constitutional convention would be to empower him.

Comments

Being An American

I recently happened on a post I wrote in the run-up to the 2000 election, addressing a question that had been posed to me during a speaking event. The question was “What does it mean to be an American, and how will the answer to that question matter in the 2020 election?

I argued that being American requires understanding, supporting and protecting what I have frequently referred to as “The American Idea”– the essential elements of our country’s version of liberal democracy: majority rule and the libertarian brake on that majority rule, aka the Bill of Rights. American identity isn’t based upon race or religion or country of origin–it is based upon support of the American Idea.

I also argued that, in order to protect the legitimacy of U.S. government, we needed to address the escalating assaults on majority rule– gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the growing (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

Those assaults on democratic legitimacy were troubling enough in 2020. They clearly enabled the further assault on American democracy that we are experiencing under a mentally-ill would-be autocrat and his MAGA cult in 2025.

Trump hasn’t limited his efforts to the assault on majority rule. He has also taken Musk’s chainsaw to the individual liberties protected by the Bill of Rights, refusing to recognize–let alone honor– fundamental rights to due process, free speech and (above all) civic equality.

Individual liberty in the United States is protected by the constraints on majority rule required by the Bill of Rights and the 14th Amendment. Those provisions–those protections–mirror the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require limitations on government overreach; it requires that we combat official sanctions of racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that operate to deny them their individual liberties.

It’s one thing to understand Trump himself: he’s obviously damaged– needy, massively ignorant, intellectually limited, declining into dementia. The harder question is, what explains the MAGA cult? What leads millions of presumably sane Americans to cheer on Trump’s defiantly anti-American efforts?

Part of the answer is civic ignorance; understanding and protecting both majority rule and individual rights requires an informed citizenry–something we don’t have, as mountains of data clearly show. When people don’t know how their government is supposed to work, they are less likely to recognize assaults on its governing philosophy. But civic illiteracy doesn’t explain MAGA, although it undoubtedly feeds it.

Racism, White Christian Nationalism and other associated bigotries are at the root of MAGA and Trumpism. America has never been able to overcome the periodic emergence of primal hatreds that motivated the Confederacy and the KKK, despite the fact that those hatreds are contrary to everything that defines Americanism.

Back in that 2020 talk, I said I was convinced that our civic challenge was about America’s structural and systemic distortions—that (assuming a Biden victory) our first order of business should be to confront the misuses of power that make fair and productive political debate about substantive issues impossible–that these failures of American governance needed to be addressed before any of the policymakers we might elect would be able to discuss, let alone pass, rational, evidence-based policies.

The need to address those systemic distortions has become more imperative, as we watch Trump take advantage of them to turn America into a very different country. As I said in 2020, you can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, unless we can rely on obedience to the rule of law by those in office, no minority of any sort–political, religious, racial, economic–is safe.

Assuming we emerge from this lawless and destructive administration more or less intact, we have our work cut out for us.

Comments

Telling It Like It Is

Jay Pritzker, the Democratic governor of Illinois recently made a speech in New Hampshire that has received significant–and merited–attention. Pritzker really “told it like it is.”

Heather Cox Richardson recently quoted from Pritzker’s speech at length, and today, I am going to do the same, because Pritzker’s words deserve widespread distribution.

“It’s wrong to snatch a person off the street and ship them to a foreign gulag with no chance to defend themselves in a court of law.” This is not about immigration, he said, but about the Constitution. “Standing for the idea that the government doesn’t have the right to kidnap you without due process is arguably the MOST EFFECTIVE CAMPAIGN SLOGAN IN HISTORY,” he said. “Today, it’s an immigrant with a tattoo. Tomorrow, it’s a citizen whose Facebook post annoys Trump.”

Pritzker called for “real, sensible immigration reform.”

“Immigration—with all its struggles and its complexities—is part of the secret sauce that makes America great, always. Immigrants strengthen our communities, enrich our neighborhoods, renew our passion for America’s greatness, enliven our music and our culture, enhance understanding of the world. The success of our economy depends upon immigrants. In fact, forty-six percent…of Fortune 500 companies were founded by immigrants or the children of immigrants.”

Trump’s attacks on immigrants, he said, are likely to make the U.S. economy fail. Indeed, he suggested, making America fail is the point of the Trump administration’s actions.

“We have a Secretary of Education who hates teachers and schools. We have a Secretary of Transportation who hates public transit. We have an Attorney General who hates the Constitution. We have a Secretary of State, the son of naturalized citizens—a family of refugees—on a crusade to expel our country of both.

“We have a head of the Department of Government Efficiency— an immigrant granted the privilege of living and working here, a man who has made hundreds of billions of dollars after the government rescued his business for him—who is looking to destroy the American middle class to fund tax cuts for himself. And we have a President who claims to love America but who hates our military so much that he calls them ‘losers’ and ‘suckers’ and who can’t be bothered to delay his golf game to greet the bodies of four fallen US soldiers. And we have a Grand Old Party, founded by one of our nation’s bravest Presidents, Abraham Lincoln—who today would be a Democrat, I might add—… so afraid of the felon and the fraud that they put in the White House that they would sooner watch him destroy our country than lift a hand to save it.”

 “It’s time to stop wondering if you can trust the nuclear codes to people who don’t know how to organize a group chat. It’s time to stop ignoring the hypocrisy in wearing a big gold cross while announcing the defunding of children’s cancer research. And time to stop thinking we can reason or negotiate with a madman. Time to stop apologizing when we were NOT wrong. Time to stop surrendering, when we need to fight.

“Our small businesses don’t deserve to be bankrupted by unsustainable tariffs. Our retirees don’t deserve to be left destitute by a Social Security Administration decimated by Elon Musk. Our citizens don’t deserve to lose healthcare coverage because Republicans want to hand a tax cut to billionaires. Our federal workers don’t deserve to have, well, a 19-year-old DOGE bro called Big Balls destroy their careers.

“Autistic kids and adults who are loving contributors to our society don’t deserve to be stigmatized by a weird nepo baby who once stashed a dead bear in the backseat of his car.

“Our military servicemembers don’t deserve to be told by a washed up Fox TV commentator, who drank too much and committed sexual assault before being appointed Secretary of Defense, that they can’t serve this country simply because they’re Black or gay or a woman.

“And If it sounds like I’m becoming contemptuous of Donald Trump and the people that he has elevated, it’s because… I am. You should be too. They are an affront to every value this country was founded upon.”

“I understand the tendency to give in to despair right now. But despair is an indulgence that we cannot afford in the times upon which history turns. Never before in my life have I called for mass protests, for mobilization, for disruption. But I am now.

“These Republicans cannot know a moment of peace. They have to understand that we will fight their cruelty with every megaphone and microphone that we have. We must castigate them on the soap box, and then punish them at the ballot box. They must feel in their bones that when we survive this shameful episode of American history with our democracy intact—because we have no alternative but to do just that—that we will relegate their portraits to the museum halls reserved for tyrants and traitors.”

“Cowardice can be contagious. But so too can courage…. Just as the hope that we hold onto in the darkness, shines with its own…special light.

“Tonight, I’m telling you what I’m willing to do…is fight—for our democracy, for our liberty, for the opportunity for all our people to live lives that are meaningful and free. And I see around me tonight a roomful of people who are ready to do the same.”

“So I have one question for all of you. Are you ready for the fight?”

To which I say “yes.” And “amen.”

Comments