Hopeful Signs

On Thursday, I travelled to North Manchester, Indiana, to deliver the Constitution Day lecture at Manchester University, and I am pleased to report that the students I met were bright, engaged, and determined to make this country work again. (Granted, the ones who attend events of this sort tend to be self-selected–this lecture wasn’t required.)

I always want to apologize to young people for the mess my generation is leaving them, but they may be up to the challenge. Fingers crossed.

Anyway–I’m posting my talk below.

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The title of this talk is “Civic Literacy, Political Discourse and the Constitution.” The obvious question is: what do those things have to do with each other?

Let me begin with an observation; what we call the “political culture,”– the public conversation that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And I’m old. There are lots of theories about what has led us to this rather unfortunate place—from gerrymandering to tribalism to rapid social change—and during Q and A, we can talk about the way those elements and others have contributed to the political nastiness we see all around us. But I want to talk about a different villain. I think our inability to engage in productive civic conversation is largely an outgrowth of our loss of trust in our common social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are to make our democracy work—but in order to trust government, we have to understand what it is actually supposed to do, and how those we elect are supposed to behave. We need a common understanding of what our constitution requires.  

Think about it: if I say this podium is a table, and you say it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where people of good will can come to different conclusions about what the constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about today.

I study how constitutional values apply within our very diverse culture, how constitutional principles connect people with very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other—to function as Americans, rather than as disconnected groups of people competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply. 

Let me share a story that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how Madison’s beliefs about freedom of expression should guide courts faced with contemporary efforts to censor the internet. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss this as anecdotal–but let me share with you just a tiny fraction of available research. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about American government. Here are some of those questions, and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

Who was the first President of the United States? 23%

Only 36 percent of the American public can name the three branches of government. Fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. There’s much, much more. 

And it matters.

If you think about it, the choices originally made in the design of our constitution have shaped the way we define what is public and what is private, our beliefs about governmental and personal responsibility, and our conceptions of human rights. They frame the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview.  If we don’t understand what those initial decisions were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but upon an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. The American idea should make us uniquely situated to thrive in a modern world where travel, immigration and economics are forcing diversification of even the most insular societies, because it based citizenship on behavior rather than identity—on what you do rather than who you are.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, the system they established wasn’t perfect, nor was it sufficient for all time. History and context matter.

Take that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. Such a view of the judicial function arguably misreads both history and the founders’ expressed intent. In any event, it’s impossible. Whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s? And how are we supposed to know what they were thinking?

More to the point, constitutions are by their nature statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are enunciated. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle James Madison enunciated –the importance of protecting free expression from government censorship—to this new form of communication? 

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

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may deprive you of your liberty? How do we balance government’s duty to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do.

As I tell my students, the Bill of Rights does not give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government from interfering with those natural rights.

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

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment is sometimes called the Libertarian Principle: the principle that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others. 

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But equality before the law means we can’t take the position that “Freedom is for me, but not for you.”   

We talk a lot about the rights of the individual, but what are the “rights” of the majority? How do we determine them? When we ask those questions, we immediately see that there are two very different answers possible. In a totally majoritarian system—the system too many Americans think we have—the rights of the majority at any given time are what the majority decides they are. In that kind of system, the only issue will be one of accuracy and definition: How can we be certain the votes accurately reflect citizen sentiment? Who has the right to vote? 

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

That sort of system is precisely what the founders feared: it’s a system that allows the majority to oppress those who are different or who hold different opinions or beliefs. It is what the founders meant by “tyranny of the majority,” and it isn’t the system the founders bequeathed us.

Under our Constitution, the rights of the majority are restrained by the operation of the Bill of Rights. The majority cannot use government to prescribe your prayer, to dictate your reading material, to arrest you without probable cause, or to treat you differently than your neighbor simply because you belong to a disfavored group. 

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who decides what books you read—not the merits of the books you choose. An insistence on a woman’s right to terminate her pregnancy is not the equivalent of a “pro-abortion” position—many women who oppose abortion nevertheless do not believe that government has the right to make that decision for individual women. An insistence on freedom of the press certainly doesn’t translate into approval of anything the press may choose to publish. A lawyer who represents a murderer is not “endorsing” murder. He or she is upholding the right of every citizen to the due process of law.

The central issue of civil liberties is the power of government—or the majority, working through government—to compel individual behaviors or infringe personal liberties. When people don’t understand that, when they don’t understand when government is empowered to impose rules and when it isn’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether this podium is a table or a chair. 

In a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing—it is more important than ever that Americans understand their history and their governing philosophy. Our constitutional values are ultimately all that we Americans have in common.  

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. To put it another way, our ability to trust one another and our government ultimately depends upon our ability to keep that government true to our fundamental values, and we can’t do that if we don’t know what those values are or where they came from.

 In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When we allow powerful partisans to rewrite our history and distort the rule of law, we undermine the American Idea and erode the social trust needed to make our democratic institutions work.

So—to answer the question I asked at the beginning of this talk, civic literacy is knowledge of America’s history and constitutional system—and it is also the language through which we engage in productive discussion and debate about the issues that face us—the common ground upon which we meet as equal citizens. Without that shared ground, without civic literacy—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we cannot sustain the nation.

And right now, civic literacy is in very short supply.

Thank you.

 

 

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Useful Fantasies

Yesterday, I noted with some alarm the fact-free nature of the GOP debate.

A recent report from the Brookings Institution offers a useful reminder that–inconvenient or not– facts really do matter, particularly when economic policy decisions must be made.

The dog days of August have given way to something much worse. Congress returned to session this week, and the rest of the year promises to be nightmarish. The House and Senate passed budget resolutions earlier this year calling for nearly $5 trillion in spending cuts by 2025. More than two-thirds of those cuts would come from programs that help people with low-and moderate-incomes. Health care spending would be halved. If such cuts are enacted, the president will likely veto them. At best, another partisan budget war will ensue after which the veto is sustained. At worst, the cuts become law.

The putative justification for these cuts is that the nation faces insupportable increases in public debt because of expanding budget deficits. Even if the projections were valid, it would be prudent to enact some tax increases in order to preserve needed public spending. But the projections of explosively growing debt are not valid. They are fantasy.

The remainder of the article–which is well worth reading in its entirety–explains that projections of deficits result from the use of “conventions” (assumptions) that do not reflect current reality, and are evidently not intended to do so.

I do not pretend to understand the utility of these conventions for budgetary purposes, but   to the extent they produce “projections” that do not reflect reality, their use as ammunition in the effort to reduce government to a size that can be “drowned in a bathtub”–to use Grover Norquist’s phrase–is pernicious.

But what if we did face persistent deficits?

The assumption seems to be that the only avenue open to policymakers would be budget cuts. It’s as if we have taken tax increases off the table–despite the fact that America’s tax rates are historically low, America’s wealthiest enjoy a wide range of unconscionable tax loopholes, and America’s most profitable corporations continue to evade taxes by parking their profits offshore.

I don’t understand the dogged determination of the “morality party” to ignore the facts in order to protect the perquisites of the already advantaged at the expense of those who have little or nothing.

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“Winning” By Making Shit Up

There is evidently a consensus among the pundits that the “winner” of Wednesday night’s GOP debate was Carly Fiorina.

There is also a consensus among fact-checkers that virtually nothing she said was accurate–and in the case of her attack on Planned Parenthood, was manufactured out of whole cloth.

Of course, the GOP primary voters to which she and the others were throwing their red meat were highly unlikely to notice.

I don’t know what’s more terrifying: the GOP’s embrace of “look at me, look at me” Donald Trump (who is unable to answer any substantive question with even a modicum of understanding or gravitas, and who endorsed the discredited theory that vaccines cause autism) or Ben Carson (the “scientist” who doesn’t believe in evolution or climate change and hasn’t a clue what government does) or Fiorina’s obvious calculation that she can improve her prospects by being the female face of the war on women, even if that requires playing fast and loose with those pesky things called “facts.”

Probably the best summary of the debate(s) was offered by Gail Collins, who–in one particularly memorable phrase–compared Jindal and Santorum to “rabid otters.”

The one indelible “take-away” from the debate–at least for Hoosiers–is that today’s GOP sure isn’t the party of Dick Lugar and Bill Hudnut.

How does that car commercial put it? This isn’t your father’s Oldsmobile…

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Whose “Religious Liberty” Do We Protect?

A couple of years ago, the website Raw Story had a troubling report about a conflict between religion and individual rights that is both accelerating and less visible than the high-profile conflicts (think Kentucky clerk) that make the news.

Healthcare providers and institutions are increasingly consolidating. In Washington State, for example, if all of the mergers planned when the Raw Story article was written were consummated, all hospital beds in nine counties are tied to religious institutions. That includes the University of Washington system.

Why should we care? Why is this is medically problematic?

Recently a woman was traveling across the Midwest when she developed abdominal pain. She and her husband went to the nearest hospital, where she was diagnosed with a potentially fatal ectopic pregnancy. The doctors recommended immediate surgery to remove the fallopian tube containing the misplaced embryo, a procedure that would reduce by half her future chances of conceiving a child. They failed to mention that a simple injection of Methotrexate could solve the problem, leaving her fertility intact. (In fact, at a secular hospital she found on her smart phone, it subsequently did.) Why the omission?

According to Catholic teaching, an injection that destroys an ectopic embryo counts as an  abortion; removing the part of a woman’s reproductive system containing the embryo is not.

The article has several other examples of situations, both in the U.S. and abroad, where theological commitments have trumped sound medical practice. In 2012, for example, a 16-year-old Dominican girl was denied cancer treatment for weeks while doctors debated whether chemotherapy would constitute an abortion. She eventually miscarried and later died.

An angry father shared his daughter’s experience:

A Catholic doctor at a Catholic hospital went against my daughter’s wishes and signed consent to have a hysterectomy because of severe endometriosis. One ovary had already exploded. My daughter had never intended or desired children nor was she in a suitable situation to have a child. She was single, in her late 20s. When she awoke from surgery she learned that the doctor had over-ridden her wishes and consent in an attempt to save her fertility. The operation was botched, leaving my daughter on permanent disability, in pain, with even more health problems than she’d had before.

When we go into a hospital, most of us expect our doctors and other healthcare providers to honor our expressed treatment directives. Many of us have Living Wills or other healthcare documents that reflect our own considered, deeply-held beliefs.

When a patient’s wishes are disregarded because they are inconsistent with someone else’s religion, that’s an unjustified denial of religious liberty–a denial that is particularly egregious because the  “bargaining power” of the parties is so unequal.

In a diverse society committed to civic equality, hospitals dependent upon government funds (Medicare, Medicaid, etc.) should be required to respect the decisions of adult, competent patients.

And medical practices consistent with accepted standards of care should never take a back seat to doctrine.

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The Light Begins to Dawn…

America has long had a “bandwagon” approach to policy; our penchant for simple solutions leads us into all manner of fads: the New Public Management, outsourcing and privatization, untested education “reforms,” and others.

For the past couple of decades, the answer to virtually every management challenge has been “privatization.” As I’ve indicated previously, there are times/situations where contracting out (which is what our version of “privatization” really is) makes sense, but thanks to our penchant for jumping on the bandwagon, government agencies have employed this method of delivering public services without the sort of rigorous analysis–or often any analysis–that should accompany decisions to turn tax supported programs over to private vendors.

Lately, however, citizens and public officials are beginning to recognize the downside of inappropriate contracting. A newspaper in North Carolina recently editorialized on the results of that state’s privatization of mental health services:

[A]ccess to services was confusing; services became unavailable to clients, and the number of people with mental illness who ended up in emergency rooms and jails significantly increased.

According to the Orange County Register, privatization’s consequences for Costa Mesa, California, were similar.

When the Costa Mesa City Council attempted to privatize large portions of municipal operations, it did so without conducting any analysis about whether its actions would save money – or whether it would cost more, which it did….

Southern California has provided fertile ground for other failed outsourcing initiatives. In the 1990s, Seal Beach thought it was on the cutting edge of local government privatization. The beach community managed to save about $30,000 in its first year of privatized jail services, and local officials were quick to pat themselves on the back for what they thought was really smart governing.

But what privatization delivered was two decades of lawsuits, two in-custody deaths, improper responses to medical emergencies, inadequately trained staff and a steady stream of violations uncovered by state regulators and health officials. Privatization of Seal Beach’s jail has resulted in so many serious problems that the city is now spending a reported $1.2 million just to start the process of bringing jail services back in-house.

The county of Orange’s most recent information-technology debacle provides yet another cautionary tale. After the county entered into a staggering $132 million contract with Xerox to upgrade phone and computer networks, performance by Xerox was so poor that the Board of Supervisors appears to be poised to sue over the broken promises and cost increases.

The article cites other examples, and notes that enthusiasm for contracting may finally be on the wane:

Across the country, governments of all sizes are rethinking the outsourcing of services as they discover its many unwelcome consequences, including lack of transparency, cost overruns, lack of competition for contracted services, and glaring weaknesses in accountability and oversight.

It’s hard to argue with her conclusion:

Services provided by public entities should be judged by what is best for the health, well-being, civil liberty and security of the public. Inserting a profit motive is an open invitation to graft and corruption and, more often than not, results in services that cost more and serve the public less.

We’ve noticed.

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