In the wake of the horrific shooting in Tucson last month, PBS’ Mark Shields made an “only in America” observation.
“This is America, where a white Catholic male Republican judge was murdered on his way to greet a Democratic Jewish woman member of Congress, who was his friend. Her life was saved initially by a 20-year old Mexican-American gay college student, and eventually by a Korean-American combat surgeon, all eulogized by our African-American President.”
There, in a nutshell, is what most of us would consider the triumph of American culture—the fact that the nation has moved, however haltingly, toward a vision that allows all of us to be members in good standing of our society, equal participants in our national story, whatever our religious belief, skin color, sexual orientation or national origin. What makes us all Americans isn’t based upon any of those individual identities, but upon our allegiance to what I sometimes call “the American Idea”—a particular worldview based upon an understanding of government and citizenship that grew out of the Enlightenment and was subsequently enshrined in the U.S. Constitution and Bill of Rights.
American culture is not threatened by immigrants who come to this country because they find that worldview attractive, but it is threatened by an appalling lack of civic literacy.
One recent survey found only 36 percent of Americans able to correctly name the three branches of government. Other research has found that fewer than half of 12th grade students can describe the meaning of federalism; that only 35.5% of teenagers can correctly identify “We the People” as the first three words of the Constitution; 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. I could go on. And on.
The consequences of this ignorance are profound.
Self-government requires a civically educated citizenry. When a nation’s citizenry is very diverse, as in the United States, it is particularly important that citizens know the history and philosophy of their governing institutions; in the absence of other ties—race, religion, national origin—a common understanding of, and devotion to, constitutional principles is critical to the formation of national identity.
Devotion, however, must be based on genuine understanding of the history and context of our constituent documents if it is to enable, rather than impede, deliberative discourse. When pundits and politicians make constitutional claims, citizens need sufficient education and knowledge to critically evaluate those claims.
Right now, Americans are embroiled in one of our recurring debates about the adequacy of public education. It’s a vital issue, but while we are addressing it, we need to recognize that deficits in civic literacy don’t just threaten democratic institutions. Such deficits have real and deleterious consequences for fields as diverse as science, religion, and public education itself.
Math and science are important, but creating informed, empowered American citizens able to recognize and resist demagoguery is even more so.
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.”
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.)
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.
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 Americanssooften 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 trustworthyagain. 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?
