Warning: this is a very long post. I spoke to Women4Change yesterday evening, and was asked to post my presentation. The following is the full text; I abbreviated some of it in the interests of time.
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A story my mother used to tell really sums up the state of American civic engagement. A young boy failed to talk. His parents took him to specialists, all of whom said he was normal, but still, he never spoke. Then one day, when he was nearly five, he looked up from the breakfast table and said “This toast is burned!” His mother was astonished. “Why haven’t you ever talked before?” “Well,” he responded, “Up till now, everything’s been okay.”
A lot of Americans who haven’t been “talking”—who haven’t been civically engaged, who have been quiet because from their standpoint, everything was going along okay—have suddenly realized the toast is burned. Now, they want to talk, but they aren’t sure who to talk to, or how to frame their concerns.
One of the major problems we face—not just in being effective advocates, but in communicating with voters who support many of the Trump Administration’s destructive initiatives– is that we Americans are woefully ignorant of our own legal and political structure. Too many of us simply don’t recognize when elected officials are behaving in ways that are inconsistent with—or destructive of—the Constitution and the Bill of Rights. When state or federal legislators propose bills that we know are inconsistent with American values, too many of us lack the ability to explain just why those mean-spirited measures aren’t just un-American but unconstitutional.
Knowledge really is power. And too many Americans have neither.
I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. (There’s a lot more depressing research on IUPUI’s Center for Civic Literacy website.) A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:
What is the supreme law of the land? 28%
What do we call the first ten amendments to the Constitution? 26%
What are the two parts of the U.S. Congress? 27%
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%
Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.
Americans are equally uninformed about important current events and issues: a recent survey found that a full third of Americans don’t know that the Affordable Care Act and Obamacare are the same thing. Only 47% of Trump voters know that Frederick Douglass is dead. Indiana had the lowest voter turnout in the nation in 2014, and 20% of Hoosiers who didn’t show up at the polls said they it was because they didn’t know enough about the candidates or the issues.
If we don’t know what the Constitution requires, we won’t recognize when proposed laws would violate it, or the difference between a policy we disagree with and one that is unconstitutional. We can’t evaluate the performance of an elected official if we’re unaware of the standards to which that official should be held.
Effective advocacy requires basing our arguments on verifiable fact and accepted history. It also requires knowing who does what in our federalist system—why taking zoning arguments to your congressman or expecting state lawmakers to change immigration law is a waste of time.
A couple of years ago, I got so frustrated that I wrote this book—really a pamphlet—called “Talking Politics? What You Need to Know Before Opening Your Mouth.”
Those of you here tonight probably already know a lot more than the average voter, and some of what I will share will probably be repetitive for you. It also won’t answer a lot of specific questions; what I hope to do is provide a sort of “refresher course” focused on the basics. We can address specific applications during Q and A.
America’s constitutional system is based on a widely-misunderstood concept of “negative liberty.” The Founders believed that our fundamental rights are not given to us by government; rather, they are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that it’s government’s obligation to respect and protect those inborn, inalienable rights.
The Bill of Rights does not grant us rights—it protects the rights we have by virtue of being human against infringement by an overzealous government. The Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.
Those limitations don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights restrains what government can do, only government can violate it. It’s amazing how many Americans don’t know that.
Constitutions are different in kind from the statutes and ordinances passed by legislative bodies. Constitutions are statements of broad principles and values; they limit what kind of laws legislatures may properly enact and what sort of actions government officials can properly take. Although a lot of the Constitution deals with specific, practical matters—how old must someone be to run for President? What is the function of the courts? How long is a Congressional term—the Bill of Rights sets out principles meant to guide lawmakers and government authorities in the future. (There is a very big difference between “there shall be a traffic signal at First and Main Streets” and “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”) A government is considered legitimate when its specific laws and the actions of its public officials are consistent with the principles of its constitution.
Understanding the difference between a constitution and an ordinary law is important for a number of reasons, not the least of which is that constitutions are intended to be frameworks –broad statements of values to guide those involved in passing specific laws. (That’s why tax caps and the right to hunt and fish don’t belong in a constitution!)
Understanding what values the Founders were trying to protect helps us apply those values in situations they could never have envisioned. It’s a safe bet that James Madison didn’t have an opinion about porn on the Internet. But Madison and the other Founders did have strong opinions about the importance of protecting free expression from government censorship. The men who drafted the Fourth Amendment’s Search and Seizure provisions couldn’t have foreseen technology that lets police officers “see” marijuana growing inside a house from across the street, but they strongly disapproved of government fishing expeditions. Today’s courts have to decide how the Founders would have applied the principles and values that were so important to them to such new “facts on the ground.” (That’s what legal scholars mean when they talk about the “living Constitution.”) If we don’t know the history and philosophy that shaped the Founders’ values, we can’t form educated opinions about how those values should apply to modern situations.
The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. The Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. The Enlightenment also changed the way we understand and define liberty. Bigly. The Puritans and Pilgrims who came to America for religious liberty defined liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and to use the power of government to ensure that their neighbors did too. The Founders who crafted our constitution some 150 years later were products of the (intervening) Enlightenment, and its dramatically different definition of liberty.
Enlightenment philosophers defined liberty as personal autonomy— our freedom to make our own moral and political decisions, free of government coercion. After the Enlightenment, liberty meant freedom to “do your own thing,” so long as you did not thereby harm the person or property of someone else, and so long as you recognized the equal right of others to do their “own thing.” The U.S. Constitution is based upon the Enlightenment understanding of liberty, but today’s culture warriors still cling to the Puritan’s definition, with the result that Americans continue to talk past each other—we use the same words, but we mean very different things by them.
As we all learned in school, the Constitution that replaced the original Articles of Confederation didn’t originally include a Bill of Rights. What we don’t usually learn is that the omission wasn’t because Founders disagreed about the importance of those rights. The Founders who objected to adding a Bill of Rights felt it was unnecessary, because they saw the new government as having only the authority to exercise powers that had been specifically delegated to it, and those powers didn’t include censoring speech, dictating religious beliefs or otherwise infringing fundamental liberties. Since government hadn’t been given the power to infringe individual rights, Founders like Hamilton argued that we didn’t need a Bill of Rights. Hamilton and the others who opposed adding written guarantees to the constitution also worried that any effort to list fundamental liberties would inevitably omit some. Nevertheless, it quickly became clear that the new constitution wouldn’t be ratified without a Bill of Rights spelling out specific rights that government was forbidden to infringe.
The compromise between the Federalists and the Anti-Federalists was a Bill of Rights in which the first eight Amendments list specific rights to be protected, and the Ninth and Tenth address the concerns of those– like Hamilton– who worried that any list of protected rights would leave some out. The Ninth and Tenth Amendments—sometimes called the “Rights and Powers” Amendments—were added to make it clear that just because a right wasn’t “enumerated”—wasn’t on the “list”– didn’t mean people didn’t have that right, and to affirm that powers not specifically given to the federal government were retained by the states and/or the people.
The Bill of Rights initially limited only federal government action. It wasn’t until the Fourteenth Amendment was ratified, after the Civil War, that the Bill of Rights’ limits on government power were applied to state and local government—something Madison had advocated but been unable to get the other Founders to do. In a series of cases interpreting the 14th Amendment, the Supreme Court ruled that Americans are entitled to the same fundamental rights no matter which state they live in. You don’t lose your right to choose your own religion or reading material, for example, when you move from New York to Mississippi. Today, when we refer to the Bill of Rights, we typically mean the first ten Amendments plus the Equal Protection and Due Process Clauses of the 14th Amendment.
Because the Bill of Rights incorporates the Enlightenment understanding of liberty, defined as our right to be free of government interference with our fundamental rights, only government can violate the Constitution.
Essentially, the Bill of Rights raises and answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these or other very personal matters—we are entitled to decide them for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves.
The Bill of Rights not only limits what government can do, it limits what popular majorities can vote to have government do. The Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. That means a majority of your neighbors can’t vote to make you Baptist or an Episcopalian, and they don’t get to vote on your reading materials or your political opinions or who you marry. (The constant rightwing insistence during same-sex marriage debate that the issue should be put to a vote drove me nuts, because in America, we don’t get to vote on whether our neighbors are entitled to fundamental rights.) When people don’t understand that the Bill of Rights limits what majorities can vote to have government do, they often misunderstand court decisions that uphold the right of individuals to hold unpopular positions or unconventional beliefs. The courts aren’t endorsing the choices made by those individuals; they are protecting everyone’s right to make those choices—good or bad—for themselves.
American government is divided into three branches: Executive, legislative, and judicial. We refer to this Constitutional structure, or architecture, as Separation of Powers, and it is fundamental to our form of government.
The purpose of dividing government this way was twofold. The Founders believed such a system would be more efficient– Judges would be better at judging if that was the bulk of their responsibilities; legislators would be better at passing laws, and so forth. They were also convinced that a division of power would keep any one branch from becoming powerful enough to threaten the liberties of citizens. Each branch would check the power of the other branches.
The legislative branch passes laws. The executive branch administers those laws. And the judiciary—ultimately, the Supreme Court—determines whether those laws are consistent with the Constitution and Bill of Rights.
Checks and balances don’t stop there. Our system also gives significant authority to state and local units of government, further dividing power. We call that structure federalism. Local, state and federal authorities have different, although sometimes overlapping, jurisdictions. Federalism obviously raises the possibility of conflicts between federal and state laws; when that happens, the Constitution’s Supremacy Clause provides that the federal law prevails. (Someone should probably tell Mike Pence.) Federalism does create tensions between people of good faith who believe that most rules should be made by the government closest to the people, and so defend states’ rights, and those who believe the need for consistency and uniformity require a stronger central government.
Understanding this structure of government is important. If you want to work for change, you need to know who has the authority to make that change. Understanding how the branches interact is also necessary in order to cast informed votes; at election time, the airwaves are filled with political ads blaming officeholders for doing or failing to do something. Often, the effectiveness of those accusations depends upon voters not understanding how government works, and where the actual responsibility lies.
People unfamiliar with checks and balances tend to view the “President as monarch”—they think that a President (or Governor, or Mayor) can simply decide to do something, and it will happen. That is very rarely the case; as we’ve seen during the Trump cabinet confirmation fights, appointments to many federal positions require ratification by the legislative branch; the budget and virtually all policy changes are made by Congress. The President proposes, but Congress disposes. (That’s why people who only vote in Presidential years or only vote for President are a big part of the problem…) We need to understand the operation of checks and balances and the way they limit the exercise of power in order to arrive at informed opinions about elected officials’ performance—and to let activists know where to apply public pressure.
In the federal courts, judges are appointed for life, and can be removed only by impeachment for improper behavior. Judicial independence is a very important part of checks and balances. We elect a President and Congress, and those branches—not the courts—are supposed to be “answerable” to voters. (Of course, the Founders didn’t foresee gerrymandering, which has effectively insulated Congress from accountability to voters. That’s a huge problem.) The courts, on the other hand, aren’t supposed to do voters’ bidding; they are responsible to the Constitution and the rule of law, not to popular opinion or the electorate. When judges have to decide high-profile or highly charged cases, we want them to make those decisions on the basis of their reading of the law, the facts and the Constitution—not out of fear of being voted out of office by a public that may favor a different result.
So much for what I call the “constitutional architecture.” Let’s look at some specific rights, beginning with Freedom of Speech.
Most of the people who want to ban a book or protect the flag from desecration are well-meaning; they see unrestrained expressive freedom as a threat to the social fabric. The Founders didn’t minimize the danger posed by bad ideas; however, they believed that empowering government to suppress “dangerous” or “offensive” ideas would be far more dangerous—that once we give the state or popular majorities the authority to decide which ideas have value, no ideas are safe. As a friend of mine once put it, where fundamental liberties are concerned, majority rule is a lot like poison gas—it’s a great weapon until the wind shifts!
The Free Speech clause of the First Amendment was based on belief in the marketplace–if you make a better widget, it will beat out the competition; if you have a better idea, it will eventually emerge victorious. Accordingly, in our system, the antidote to bad speech is not suppression; it is more and better speech. The First Amendment was intended to protect all ideas, not just good ideas, or ideas with which the majority may agree. As Justice Oliver Wendell Holmes memorably put it, the Free Speech Clause of the First Amendment was meant to protect “the idea we hate.”
While government must respect our right to express our own opinions—while it cannot control the content of our message—it can constitutionally regulate the time, place and manner of that expression. Such restrictions must be reasonable, must be content neutral (that is, not based upon the idea being expressed), and must apply to everyone equally. Enlightenment philosophers believed that a robust “marketplace of ideas” was the mechanism most likely to guarantee that truth would emerge from public debate.
The First Amendment also requires separation of church and state. As the Pat Robertsons of the world will tell you, that specific phrase doesn’t appear in the Constitution. Actually, its first documented use was by Roger Williams, founder of Rhode Island, well before the Revolutionary War; its most famous was in a letter from President Thomas Jefferson to the Danbury Baptists, who’d asked for an official interpretation of the First Amendment’s religion clauses. Jefferson responded that the Establishment Clause and Free Exercise Clause were together intended to “erect a wall of separation” between government and religion.
Historians tell us that the Establishment Clause went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The language they settled on forbids government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that favor religion over non-religion, or non-religion over religion. Basically, government is supposed to “butt out” of our souls.
The Establishment Clause forbids government from endorsing or supporting religion; the Free Exercise Clause prohibits government interference with its “free exercise.” Americans have the right to choose their own beliefs, and to express those beliefs without fear of state disapproval. Together, the Free Exercise Clause and the Establishment Clause require government neutrality in matters of religion; in other words, Government can neither benefit nor burden religious belief. One way to think about the operation of the religion clauses is that the Establishment Clause forbids the public sector (i.e., government) from favoring or disfavoring religion, and the Free Exercise Clause forbids government from interfering with the expression of religious beliefs in the public square (i.e., any non-governmental venue where citizens exchange ideas and opinions.)
It’s important to note that the courts have endorsed restrictions on religious observance (as opposed to belief)—for example, your religion may call for sacrificing your first-born, or stoning non-believers, or using hallucinogenic drugs, but Free Exercise doesn’t allow you to violate laws of general application, no matter how sincere your belief.
Some of Americans’ most heated arguments are rooted in religion. This has always been the case, even in colonial times, when “religious diversity” mostly meant “different kinds of Protestant.” When government misuses its authority to play favorites, to privilege some religions over others, people who don’t share those privileged beliefs are relegated to the status of second-class citizens. Separation of church and state prevents our contemporary Puritans from using government to force impose their beliefs on others, and it keeps agencies of government from interfering with the internal operations of churches, synagogues and mosques.
Unlike Donald Trump, the Founders believed that self-government requires a free press, and the uninhibited flow of information. The First Amendment’s free press provision emphasizes the importance of protecting the specific kind of expression we call “journalism.” Note that the constitution doesn’t protect people called “journalists.” It protects the act of journalism, in order to ensure the availability of information that is in the public interest.
The Founders were anything but naïve. They recognized that what they called the press and we call the media got it wrong a lot. The newspapers of their own time were partisan rags that make some of our own politicized outlets look positively statesmanlike by comparison. But they also believed that only the freest, most robust exchange of argument, information and gossip would safeguard liberty. Neither Freedom of Speech nor Freedom of the Press rested on the notion that ideas are unimportant, that “sticks and stones can break my bones, but words won’t hurt me.” The Founders knew that ideas can be both powerful and dangerous. But—as I said earlier—they also believed that giving the government power to decide which ideas and information can be transmitted or expressed would be infinitely more dangerous.
Informed citizens are ultimately the only guarantors of liberty and sound policy, and in our complex modern society, citizens have to depend on the media for their information. This is sometimes called “the watchdog function,” and it’s critically important to reasoned political decision-making. One of the challenges facing American citizens in the age of the Internet is the fragmenting of the traditional media, and the loss of the fact-checking function it used to provide. When citizens don’t have reliable and credible sources of information, so-called “fake news” drives the national conversation. In addition to civic literacy, we desperately need media literacy—defined as the ability to separate spin and propaganda from actual news.
In addition to Freedom of Speech, Religion and the Press, the First Amendment provides for “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The U.S. Supreme Court held in 1937 that the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be made a crime.” The right isn’t unlimited. The government has the right to impose content-neutral, reasonable time, place and manner restrictions on demonstrations, and the Court has given government more authority to regulate expression when that expression takes place on government property. (For example, government officials can limit protests in public buildings like courthouses and government offices in order to continue routine operations.) When demonstrators plan to use public streets or sidewalks, local governments can require permits and designate routes in order to address traffic concerns and ensure public safety; however, permit restrictions and fees must be reasonable, and government cannot refuse permits to disfavored groups, no matter how pernicious their message.
When we think about assembling today, images of the Tea Party or Occupy Wall Street may come to mind, but this right to demonstrate, to engage in public protest, has been an important part of the American story for a long time. It protected union organizers, facilitated the civil rights movement, and the gay rights movement. It has also protected people trying to derail those movements. Demonstrations—sometimes called “symbolic speech”—are part of the broad umbrella of expressive freedom that the Founders believed essential to ordered liberty. Protecting the right of citizens to come together to protest perceived injustices or highlight social problems is another “check” on the power of government. It empowers citizens to demand that their concerns be heard, if not necessarily addressed.
Before the American Revolution, British soldiers entered the homes of colonists at will, searching any person or place they wanted and often motivated by nothing more than political animosity. When America won independence, anger about those practices led to enactment of the Fourth Amendment, which provides that people have a right to be secure in their “persons, houses, papers and effects against unreasonable searches and seizures” and requires that police and other authorities have a warrant, issued upon “probable cause,” to conduct such searches.
The 4th Amendment effectively prohibited searches unless government had cause to believe that a crime had occurred and a good reason to believe that a specific person or place contained evidence of that crime. Furthermore, the reasonableness of the search was not to be left to the discretion of an individual policeman; a search warrant was to be issued by an impartial magistrate.
The Fourth Amendment was intended to protect citizens against abuses of authority. America, unlike totalitarian regimes, places the burden on government to show why it should be allowed to search, rather than on citizens to demonstrate why they should be left alone. The Fourth Amendment rests on the premise that individuals are entitled to be left alone unless there is good reason or “probable cause” to intrude upon their privacy. The Fourth Amendment protects us against “fishing expeditions”—searches for something incriminating that are based solely on hunches, animosity or cultural stereotypes. If recent reports that immigration officials have been going door to door demanding proof of citizenship are true, that behavior would violate the 4th Amendment.
The right of each citizen to “due process of law” is included in both the Fifth and Fourteenth Amendments. The Fifth Amendment provides that no person shall be “deprived of life, liberty or property without due process of law” and the Fourteenth Amendment reinforces that prohibition by declaring that “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law..”
The effect of this insistence on a fair process can be seen most clearly in the American criminal justice system. In Europe, civil and canon law systems—sometimes referred to as inquisitorial systems— had been common. Unlike those systems, we have an adversarial system requiring that proceedings be public, rather than secretive, and that give accused persons a presumption of innocence. (In other words, the “burden of proof” is on the government, which must prove guilt “beyond a reasonable doubt.” An accused person doesn’t have to prove his innocence.) People charged with crimes have a right to be tried by a jury of their peers, in a trial presided over by an impartial judge, and they have the right to refuse to testify—to “take the Fifth” as popular culture phrases it. If the prosecution loses, that’s it—the prohibition against double jeopardy means the state can’t try again.
These and other aspects of criminal law’s due process guarantees were efforts to keep a powerful government from railroading less-powerful individuals. The primary goal of our system is not to demonstrate the authority of an all-powerful state, it is to find the truth of a matter, and achieve justice.
Americans’ right to due process isn’t limited to the criminal justice system. Whenever government acts in a way that threatens a citizen’s liberty or property, the government is obligated to provide fair notice and an opportunity for that citizen to be heard. Due process in civil matters is defined as our right to fundamental fairness. When government proposes to take action that would violate what the courts have called “the liberty interest” (things like the right to enter into contracts, the right to engage in common occupations, the right to marry and bring up children, to worship freely, to acquire useful knowledge), or when the government is threatening a “property right” (licenses to practice a profession, social security entitlements, civil service employment) citizens have a right to be notified in advance of the impending action and the reasons for it, and the right to argue about it—including the right to confront witnesses against us, and to have our arguments heard by an impartial decision-maker.
There is one other type of due process, and many Americans still refuse to accept it. It’s substantive due process, sometimes called “the right to privacy.” Substantive due process distinguishes between matters that are properly a concern of government, and those that aren’t. For example, in Griswold v. Connecticut, in 1967, the Supreme Court ruled that a couple’s decision to use birth control is not a decision that can constitutionally be made by government. Roe v. Wade held that until the 3d trimester, the decision to terminate a pregnancy was a decision for the pregnant woman to make. Those attacking Roe don’t seem to understand that a government with the power to forbid abortion is a government with the power to require it. (Case in point: China.) The legal issue isn’t whether a woman should abort, the issue is who gets to make that decision.
Due process guarantees are a direct outgrowth of the Founders’ insistence on limiting state power. The Constitution draws a distinction between what is public and what is private, and substantive due process guarantees are one way we ensure that government doesn’t make decisions that are properly left to individuals. Both procedural due process and substantive due process are meant to limit the authority of government and prevent abuses of state power.
The Fourteenth Amendment also prevents government from denying citizens the equal protection of the laws. Governments need to classify citizens for all kinds of perfectly acceptable reasons. We draw distinctions between children and adults, between motorists and pedestrians, between smokers and non-smokers. Equal Protection doctrine prevents government from imposing inappropriate classifications; those based on criteria that are irrelevant to the issue, or that unfairly burden a particular group. The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.
Laws can be discriminatory on their face (i.e., only white males can vote); however, these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters weigh 180 or more pounds would prevent many more women from being firefighters than men, despite the fact that weight is not a indicator of strength to handle a hose or climb a ladder. There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.
The courts look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. We call that process of taking a closer look “heightened” or “strict” scrutiny.
The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights— only apply to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so except in a city or town with a civil rights ordinance, private companies can fire someone for being gay, or refuse to sell a pizza to someone perceived to be gay.
Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality. That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity.
If you still aren’t quite certain about the difference between civil liberties and civil rights, my students will keep you company. Civil liberties are the individual freedoms protected by the Bill of Rights. Only the government can violate your civil liberties. Civil rights took a lot longer to achieve, and were—and still are—a lot more controversial. Congress passed the Civil Rights Act in 1964. Civil rights laws protect people against private sector discrimination in employment, housing or education. The original Civil Rights Act applied to businesses engaged in interstate commerce—businesses that held themselves out to be “public accommodations” but were, shall we say, “selective” about which segments of the public they were willing to accommodate. State and local civil rights acts followed passage of the federal law. Civil rights laws generally include a list of characteristics that cannot be used to discriminate against people: race, religion, gender, and so forth.
Knowing the difference between civil liberties and civil rights helps Americans better understand the arguments being made by groups that remain unprotected by civil rights laws. For example, as I’ve noted, LGBTQ people in states with civil rights laws that don’t prohibit discrimination on the basis of sexual orientation can legally be fired just for being gay. Landlords can refuse to rent apartments to them. The Fourteenth Amendment’s Equal Protection Clause prohibits government from treating gays and lesbians differently, but it has nothing to say about private discrimination.
It’s important to note here that, since the Free Exercise Clause is a constitutional guarantee, a civil rights law protecting gays and lesbians would have no effect on the practices or preaching of churches that consider homosexuality sinful—just as civil recognition of divorce didn’t mean that the Catholic Church had to change its theological opposition to divorce. People like Eric Miller who argue otherwise are stoking unfounded fears by depending upon the constitutional ignorance of their followers.
There are also important economic and scientific terms that many Americans don’t understand, and productive discussion is impossible when people are using the same words to mean different things. Effective advocacy requires that we use words to communicate—not to label and insult. (Calling Obamacare “socialism” or labeling Trump a “Fascist” isn’t going to change anyone’s mind.)
Capitalism, Socialism and Fascism are economic systems, not insults. In capitalist systems, trade and industry are controlled by private owners for profit. Capitalism is characterized by free markets, where the prices of goods and services are determined by supply and demand, rather than set by government. Economists often define a free trade as a transaction between a willing buyer and a willing seller, both of whom are in possession of all information relevant to that transaction.
Understanding what counts as genuine capitalism is important, because it defines the proper role of government as that of an “umpire” or referee, ensuring that everyone plays by the rules. Teddy Roosevelt reminded us that monopolies distort markets; if one company can dominate a market, that company can dictate prices and other terms with the result that transactions are no longer truly voluntary. If Manufacturer A can avoid the cost of disposing of the waste produced by his factory by dumping it into the nearest river, he will be able to compete unfairly with Manufacturer B, who is following the rules governing proper waste disposal. Economists agree that in order for markets to operate properly, government must act as an “umpire,” assuring a level playing field–that an absence of appropriate regulatory activity undermines capitalism.
Too much regulation can stifle economic activity, while under-regulated markets can lead to a system called corporatism. In corporatist systems, government regulations favoring powerful corporate interests are the result of lobbying by special interests that stand to benefit from them. You might think of corporatism as a football game where one side has paid the referee to make calls favorable to that team. A lot of the criticisms leveled at American capitalism are really criticisms of corporatism.
Socialism simply means the collective provision of goods and services. The decision whether to provide certain services collectively rather than leaving their production and consumption to the free market can be based upon a number of factors. First, there are some goods that free markets cannot or will not produce. Economists call them public goods, and define them as both “non-excludable” –meaning people who haven’t paid for them can’t be kept from using them—and “non-rivalrous,” meaning that use by one person doesn’t reduce the availability of that good to others. Examples of public goods include fresh air, knowledge, and national defense. These things have to be supplied by the whole society, usually through government, and paid for with tax dollars.
Not all goods and services that we provide collectively are public goods. We socialize police and fire protection because doing so is more efficient and cost-effective, and because most of us believe that limiting those services to people who can afford to pay for them would be immoral. We socialize garbage collection in more densely populated urban areas in order to enhance the livability of our cities and to prevent disease transmission. Whether to socialize this or that government service is a policy question, not a test of patriotism.
Fascist regimes are characterized by a focus upon a glorious past. They emphasize traditional class structures and gender roles. Three elements of Fascism are 1) a national identity fused with concepts of racial superiority; 2) rejection of civil liberties and democracy in favor of authoritarian government; and 3) aggressive militarism. (You can draw your own parallels….)
Getting the “mix” right between goods that we provide collectively and those we leave to the free market is important, because too much socialism hampers economic health, and unrestrained capitalism can become corporatism. In our highly polarized politics today, words like Socialism, Fascism and Communism have lost objective content, making communication very difficult.
Understanding the differences among different political philosophies is important for two reasons: first, we can’t have productive discussions or draw appropriate historical analogies if we don’t have common understandings of the words we are using. Second, we cannot learn from history and the mistakes of the past if the terms we are using are unconnected to any substantive content.
A number of other economic terms are also misunderstood or frequently misused: the difference between effective and marginal tax rates, or the belief that “federal taxes” are the same thing as “income taxes.” Although income taxes are federal taxes, there are many other kinds of federal tax: the payroll tax, the federal excise tax, and various specialized taxes. While the income tax is mildly progressive—that is, as income rises into successive tax brackets, it is subject to higher rates—taxes like the payroll tax and federal excise tax on gasoline are regressive, because they take a larger percentage of the income of those who earn less. People who earn very little money or people with lots of deductions may not pay income tax, but almost everyone pays payroll and excise taxes. When Mitt Romney said 47% of Americans don’t pay taxes, that was true only for income taxes.
Similarly, most people can’t distinguish between the deficit and the national debt, and don’t understand why failing to raise the debt ceiling wouldn’t do anything to reduce the national debt. It would just cause the U.S. to default on what it owes and trigger a worldwide financial catastrophe.
Then there are the depressing debates about climate change and the teaching of evolution in public schools. Clearly, substantial numbers of Americans do not know what science is, or the difference between science and religion.
Science is the effort to understand the natural and social world through a systematic methodology based on evidence. The scientific method begins by identifying a question or problem, gathering relevant data, formulating a hypothesis based upon that data, and then subjecting that hypothesis to additional empirical testing.
Understanding what human activities can be classified as scientific, rather than philosophical, ideological or religious, is the only way we can determine the appropriate jurisdiction of government. If the House of Representatives’ Committee on Science and Technology is to properly evaluate policies that come before it, its members need to understand what science is—and what it isn’t. When public school boards are asked to include “alternate” theories of creation in science classes, they need to be able to distinguish between theories that are scientific—and thus appropriate for inclusion in a science classroom—and those that are religious doctrine.
And then there’s my own personal gripe—people don’t understand what a scientific theory is. In science, a theory isn’t a “best guess” –which is the way we use the term in informal conversation. A scientific theory is a summary of a group of hypotheses that have been successfully and repeatedly tested. Once enough evidence supports a hypothesis, a theory is developed, and that theory becomes accepted as a valid explanation of a particular phenomenon until and unless further testing proves otherwise. That further testing is called falsification.
If something cannot be falsified—tested and potentially disproved—it isn’t science.
There’s obviously a lot more we all need to know in order to become more effective citizens. All I’ve done tonight is give you a crash course in American constitutional philosophy and provide you with some basic economic and scientific terminology. The big, important question is, what will you do with that information?
If we are to prevent Trump and his enablers from further burning the toast– destroying democratic institutions and setting American citizens against each other, we have to get serious about activism. So let me just leave you with a couple of assignments.
We have to get rid of gerrymandering, but in the meantime…If no one is running against an incumbent, make it your business to find someone—and if you can’t find someone, run yourself. Maybe you won’t win, but just providing voters with a choice is immensely important. Both parties need to begin the process of building a bench: Republicans need to find and field “old style,” sane Republicans who can primary the crazies; Democrats need to contest seats even in bright red districts.
We have to get out the vote. Trump was the choice of 26% of eligible voters. Women4Change has over 11,000 members; if every one of us committed to finding three people who didn’t vote in 2016, and to making sure not just that those people are properly registered, but that they have the necessary voter ID, and that they get to the polls, we could make a huge difference even in gerrymandered districts.
If you are already “keyed in” to the political system, or working with an organization like Women4Change, you probably know what you need to do. But if you feel overwhelmed, or you know someone who wants to do something but doesn’t know what or how, Activism Engine is your tool. https://activismengine.org It will let you choose your issue, choose your location, and track and share your activities. It will tell you what legislation is pending and what activities are upcoming, and if you put in your address, it will give you the names and contact information for everyone who represents you from City Counsel to President. And it is simple and easy to use.
Knowledge is power, but only if it is used.
