Constitutional Oblivion

I know I’m a broken record when it comes to the appallingly low level of civic literacy in this country, but bear with me for one more installment of “Is it really possible to be that ignorant?” 

Valarie Hodges is an actual, nonfictional member of the Louisiana legislature, which means Louisiana citizens elected her to that body. She enthusiastically supported Governor Bobby Jindal’s school voucher program; however, it turns out that her support rested on the premise that school vouchers could only be used for Christian schools.  As she explained her position,  “I actually support funding for teaching the fundamentals of America’s Founding Fathers’ religion, which is Christianity, in public schools or private schools. I liked the idea of giving parents the option of sending their children to a public school or a Christian school.”

Where to start?

There’s the bad history, of course. While the nation’s founders were all nominally Christian–Protestant, to be more specific–their actual beliefs varied. Some were traditional believers. Many were Deists. Jefferson famously re-wrote the bible to eliminate all the metaphysics (pardon me, Valerie–that means ‘the God stuff’), leaving only the moral instruction. Adams opined that the attribution of divinity to Jesus was a great heresy. Franklin was openly skeptical–and, unlike Valerie–famously tolerant.

Then there’s the Constitution. People we elect to public office take an oath to support the Constitution of the United States. Is it too much to expect that they have some minimal acquaintance with that document?

Read together, the religion clauses of the First Amendment are a prescription for government neutrality in matters of conscience. Government is prohibited from favoring one religion over another, or religion over non-religion. That’s what we mean by separation of church and state–government, even in Louisiana, has to keep its grubby hands out of our souls. From the tenor of her remarks, its safe to assume that Valerie had never encountered references to or explanations of the Establishment Clause or the Free Exercise Clause, and would be surprised to learn that they prohibit teaching Christianity in public schools, let alone authorizing vouchers to be used only in Christian schools.

But finally, there’s reality. Are there no non-Christians in Louisiana? I can understand why there might not be a Buddhist Temple or Hindu shrine close by, but really, are there no synagogues or mosques? Has Valerie ever met an atheist? A Unitarian? Does she watch television or read news on the Internet? It is incredible that she seems never to entertained the possibility of neighbors who do not share her particular beliefs.

I hope–I believe–that Valerie is an outlier, that her incredible ignorance of the law and history and composition of her own country is unrepresentative. But we have a lot of anecdotal and survey data that suggests she isn’t as much of an anomaly as we might hope.

I’m not sure what we do about people like Valerie, or about the people who educate and elect the Valeries of our nation, but several of us at IUPUI intend to find out.

Tomorrow, I’ll explain how.

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A Widespread Misunderstanding

A recent comment posted to this blog demonstrates a widespread–and pernicious–misunderstanding of the role of the U.S. Constitution. The commenter demanded to know where there was any reference to healthcare in the constitution.

The answer, of course, is that no such reference exists–just as there’s no reference to, say, smoking. Or marriage. Or the right to drive a car. Or the internet.

The constitution does not grant us rights. It limits the government’s right to infringe on those rights. The founders believed that we have certain “inalienable” rights by virtue of being human (hence “human rights”). Some believed those rights were “endowed by the Creator.” But Creator or no, those human rights preceded governments and their laws; the Bill of Rights was intended to constrain government from ignoring or invading them.

The bottom line is that government can pass laws and create programs that the legislature believes will advance the general welfare, so long as those laws and programs do not run afoul of the limits imposed by the document itself, or by the Bill of Rights. We are all free to disagree about the wisdom of government’s policy choices; we are equally free to debate whether, in close cases, government has crossed the lines established by the constitution.

But when we look to the language of our constituent documents for permission–when we view government as the source of our rights–we betray a fundamental misconception of the role of government and law in these United States.

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Conserving Our System

What passes for political discourse these days is so debased, so irrational, that we no longer even think about the real meanings of the words we throw around. So “socialist” is conflated with “Nazi” (and used without any obvious understanding of what the term describes) and “conservative” is used to describe positions that are anything but.

To be conservative is to “conserve”–to protect elements of the past.

E.J. Dionne makes the point that today’s self-described conservatives are really radicals bent upon a wholesale abandonment of settled aspects of our national life.  It’s an important column, and well worth reading in its entirety.

Now, there are times when wholesale change is necessary or advantageous. There are other times when dramatic, radical reinvention is profoundly harmful. In a democratic system, it is up to the voters to decide whether they want to replace what they have with something radically different. But in order to make that decision, voters need to understand what is really being proposed–and in an era where propaganda has displaced much of the news, where a pitiful minority know enough about America’s history or constitutional system to recognize the magnitude of the changes the current GOP field is advocating, the significance of the 2012 election is not obvious to many–perhaps most–voters.

What was that old Chinese curse? May you live in interesting times?

We’re there.

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Facts, Law and Mike Delph

A friend who uses Twitter sent me a series of Tweets from Mike Delph today. Most railed against “activist” judges (beginning with Chief Justice Marshall’s decision in Marbury v. Madison) and the “elites that control them.” Others were–frankly–incomprehensible, not to mention ungrammatical. The one sentiment that came through loud and clear is that Delph is highly pissed off that the courts would dare strike down provisions of his pet legislation. (Putting this as politely as possible, if he has even a rudimentary grasp of the constitutional architecture, that grasp was not on display in these tweets.)

I thought about Delph’s war on immigrants when I read a recent article from the Atlantic.

The article was titled “Safety in Diversity: Why Crime is Down in America’s Cities.” A couple of relevant paragraphs will give its basic thrust, but the entire article is worth reading.

In the popular imagination, crime is frequently associated with big, densely populated cities. Here again, we can separate fact from myth.  Primary cities and older high-density suburbs exhibited the largest decreases in crime between 1990 and 2008, according to the Brookings study. And the gap between city and suburban violent crime narrowed in two-thirds of the nation’s 100 largest metro areas. Our own analysis turns up no association whatsoever between metro size or metro density and the overall level of crime, though we do find a modest correlation (.25) between density and violent crime.

……

It might be hard to wrap your mind around this–especially with all the demagoguery about immigration. But the numbers tell a different story than our alarmist pundits and politicians do. “Since 1990, all types of communities within the country’s largest metro areas have become more diverse,” Elizabeth Kneebone, one of the authors of the Brookings report, wrote in The New Republic. “Crime fell fastest in big cities and high-density suburbs that were poorer, more minority, and had higher crime rates to begin with. At the same time, all kinds of suburbs saw their share of poor, minority, and foreign-born residents increase. As suburbia diversified, crime rates fell.” Along with their entrepreneurial energy and their zeal to succeed, immigrants are good neighbors–cultural and economic factors that militate against criminal behavior, and not just in their own enclaves but in surrounding communities as well.

Don’t you just hate it when the facts smack you down?

The Politics We Deserve

My speech to the Annual Meeting of the Jewish Community Relations Council.

___________

We have just emerged from one of the most depressing sessions of the Indiana legislature I can remember. It was anti-woman, anti-immigrant, anti-gay, anti-teacher, anti-public-employee…We passed a mean-spirited and largely unconstitutional immigration bill. We defunded Planned Parenthood, in violation of federal law, and deprived some 22,000 women of vital medical services like pap smears and cancer screenings. At a time that polls show a slight majority of Americans favoring same-sex marriage, our legislators began a process to add a ban to the Indiana Constitution. (One of my students who interned at the General Assembly told me he calls it the “Hate-house” rather than the Statehouse.

Washington is, if anything, worse. Other states—notably Wisconsin, Michigan, Ohio and Florida—are worse still. Lunacy abounds. So Marsha has asked me to address a not-so-simple question: What did we do to deserve what can only be characterized as the politics of farce?

Good question–to which there are many possible answers.

One of my favorite stories is the one about the Rabbi in a little shtetl in Eastern Europe. Two villagers come to him with their argument. He hears the first man’s side, and says: “You are right.” Then he hears the other man’s argument, and says “You are right.” At that point, a bystander protests “They can’t both be right!” The Rabbi nods sagely and says “Ah—you too are right!”

When I look at today’s toxic political environment, I feel a lot like that Rabbi. On one hand, it is tempting to say that there’s really nothing new here: any student of American history will recognize long-standing elements of American public life that have been amply documented: In 1964, Richard Hofstadter wrote his famous Harper’s article, “The Paranoid Style in American Politics,” which began

“American politics has often been an arena for angry minds. In recent years we have seen angry minds at work mainly among extreme right-wingers, who have now demonstrated in the Goldwater movement how much political leverage can be got out of the animosities and passions of a small minority. But behind this I believe there is a style of mind that is far from new and that is not necessarily right-wing. I call it the paranoid style simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind. In using the expression “paranoid style” I am not speaking in a clinical sense, but borrowing a clinical term for other purposes. I have neither the competence nor the desire to classify any figures of the past or present as certifiable lunatics. In fact, the idea of the paranoid style as a force in politics would have little contemporary relevance or historical value if it were applied only to men with profoundly disturbed minds. It is the use of paranoid modes of expression by more or less normal people that makes the phenomenon significant…     I am interested here in getting at our political psychology through our political rhetoric. The paranoid style is an old and recurrent phenomenon in our public life which has been frequently linked with movements of suspicious discontent.”

Hofstadter’s description sounds familiar to anyone who spent any time at the General Assembly, or who has been following Congress.

Hofstadter won the 1964 Pulitzer Prize for his analysis of anti-intellectualism in American life, by which he meant resistance to evidence and reason in favor of ideology and blind faith. I looked at that same phenomenon through a somewhat different lens in my book “God and Country: America in Red and Blue.” And I don’t have to tell all of you that there is nothing new about racism, tribalism, anti-Semitism…all of which historically have increased during times of economic stress and times of significant social change—both of which we’ve been experiencing. So—if you tell me our current politics are nothing new, I’d have to say you’re right.

On the other hand—there is another hand. Some elements of our contemporary landscape are undeniably new.  The internet is clearly the most significant of the new elements; never before in human history has information, rumor, falsehood, fantasy, propaganda and spin traveled so far so fast. And we don’t have any history to instruct us, to tell us what this new element means for our ability to live together with some semblance of amity.

History tells us that during FDR’s Presidency, there were all sorts of rumors about the “Jewish cabal” that was controlling Roosevelt and running the country and the banks. I’m old enough to personally remember the rumors during JFK’s campaign—people actually told me that the Catholics were stockpiling arms in the basement of their churches, and would engage in an armed uprising after the election (I can’t remember now if the uprising was going to happen if Kennedy won or if he lost). So crazy isn’t new–but today, crazy is enormously amplified by the ease of transmittal. My husband gets forwarded messages from some of his relatives and we can only roll our eyes. Friends who find themselves on odd email lists share some unbelievably paranoid and racist transmittals they’ve received. Indiana is hardly exempt from this sort of thing, and it isn’t restricted to the demonstrable nut cases. I’m on the email lists of both state parties, and to read their messaging is to wonder if they live on the same planet, let alone the same state. The internet amplifies our worst fears, and its anonymity encourages some seriously sick minds.

Worse, this avalanche of propaganda and spin is not being adequately countered by responsible journalism. Newspapers are dying; the audience for broadcast news is dwindling. In the absence of a  business model that works in the era of Craigslist and Huffington Post, news organizations have fired a huge percentage of their staffs, primarily reporters. When I was in City Hall, there were two newspapers and three full-time reporters covering city government, and at least that many covering the Statehouse. Now there is one increasingly thin newspaper, and so few reporters that we have totally inadequate coverage of local and state government. I teach a course called “Media and Public Policy,” and the title of the textbook I’m using next fall is “Will the Last Reporter Please Turn Out the Lights.”

In place of news geared to the general public, we are seeing what has been called the “niching” of the media. Today, it is relatively easy to live in a reality of your own construction by choosing the “news” that simply confirms your pre-existing biases. The historic responsibility of the press, to fact-check and to serve as a watchdog to power, has diminished to an alarming extent. Granted, that’s not altogether new—early in American history, political parties sponsored newspapers—but again, the ease with which the internet can spread disinformation makes the absence of a responsible, objective press both dangerous and troubling.

What else is new? Globalization. Don’t kid yourselves that Indianapolis and Indiana are somehow exempt from the effects of globalization and the greatly increased mobility and interconnectedness that come with it—we aren’t. Next fall, SPEA will offer a course called “Global Indy,” exploring the multiple local effects of these new realities.  One of those effects is a vastly more diverse Indiana population. Another is the transformation of the global economy, where multi-national corporations with budgets larger than those of many nation-states exercise power that is arguably outside the laws of any particular country. Yet another is the ongoing transformation of war: we have fewer conflicts between nation-states and more threats from terrorist groups, both homegrown and foreign, whose attacks are more random and less predictable—and thus much more frightening and destabilizing. Globalization, paradoxically, has strengthened tribalism, as people who lack the personal resources to deal with radical change cling more tightly to the world they know.

It isn’t entirely hyperbole to suggest that, in the wake of Obama’s election, a lot of older white guys woke up, looked around and said “Oh My God—there’s a black guy in the White House! There’s a woman running Congress!  There are brown people coming over the border! There are gay people getting married! I want my country back!” The world is changing before their eyes, and at a rate that is unprecedented and disorienting.

So—if you tell me the current political environment is something new—well, as the Rabbi in my story might have said, you also are right!

We can talk for a long time about how we got here, and whether we deserve the politics we have, but of course, the important question is: what do we do? How do we stop electing extremists and buffoons, and encourage thoughtful people to get back into politics? The primary challenge to Dick Lugar won’t help. When a certifiable loon convinces 80% of Indiana Republican Country Chairs and a significant portion of the GOP base that Dick Lugar is too “liberal,” when the evidence of that liberalism is that he voted for the START treaty and co-sponsored the DREAM Act, we have a problem. When Mike Pence is considered a “mainstream” gubernatorial candidate, we have an even bigger problem.

I wish I knew how to remedy this situation. I don’t. But I do have a small part of the answer: civics education. Bear with me here.

I study how constitutional values operate within a diverse culture, how those values connect us to people with very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—a genuine understanding of the history and philosophy of our country—is absolutely critical to our continued ability to function as a unified people. That research has also convinced me that the civic literacy we need is in very short supply.

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

Now, as we academics like to say, the plural of anecdote is not data. Unfortunately,however, there is plenty of data to support a charge of widespread civic ignorance. Only 36 percent of Americans can name the three branches of government. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify and explain checks on presidential power. A few years ago, the Constitution Center reported on a poll they’d taken with the headline: “Americans Revere the Constitution and Have No Idea What It Says.”

Civic ignorance explains a great deal of the craziness and conflict we see around us. People who have little grasp of American history or the Enlightenment roots of our particular approach to government are those most easily mobilized by Tea Party pontificators or the demagogues who populate talk radio and television.

Constitutions are expressions of political theory, efforts to address the most basic question of society—how should people live together?  Americans have answered that question in a certain way. In fact, as I have often maintained, America is more an idea, more a philosophy of governance, than a place on a map.

This was the first nation that wasn’t based upon geography, ethnicity or conquest, but upon a theory of social organization, what John Locke called a “social contract” and Todd Gitlin has called a “covenant.” That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. When you think about it, the American idea should make us uniquely situated to thrive in a world where trade and technology are making geography increasingly irrelevant; where travel, immigration and economics are forcing diversification of even the most insular societies, because it based citizenship on behavior rather than identity, a then-radical choice that made America particularly hospitable to Jews and other minorities.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that ought to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality. Understanding them is absolutely fundamental to our ability to construct a civic and civil society.

The great debates between the Federalists and Anti-Federalists were about the proper role of government. That debate continues today, and reasonable people will have different opinions about where the lines should be drawn. But reasoned disagreement requires at least some common ground. When people don’t understand the most basic premises of our legal system—when they insist that this is a Christian Nation, that there is no separation of church and state, or that the states are not legally bound to respect the Bill of Rights—our public discourse is impoverished and ultimately unproductive.

Civic literacy requires an acquaintance with American history and the context of our constituent documents—an accurate understanding, not a Texas-Board-of-Education understanding, not a Michelle Bachmann or Mike Pence understanding, and most certainly not a Mike Delph understanding. (It’s probably tacky to point out that Delph—author of Indiana’s anti-immigration bill—recently failed the Indiana bar exam. I’m not surprised.)

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

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

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

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within a common constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When our divisions and debates pit powerful forces trying to rewrite our history and our most basic rules against citizens who lack the wherewithal to enforce those rules, we undermine the American Idea and turn the political process into a struggle for raw power.

At the end of the day, the issue is whether we can once again reinvigorate the American Idea and make it work in a city, state and world characterized by nearly instantaneous communications, unprecedented human mobility, and global challenges like climate change and international terrorism.

Let me be as clear as I can be: Americans don’t have to agree about economic and social policies; we don’t have to share political philosophies, and we can disagree about the proper application of constitutional principles to new situations. But we do have to have a common framework for our disagreements—we can’t communicate with each other at all until we can argue from within the same reality. And that means that we won’t have a reasoned and civil politics until the majority of Americans have at least a basic familiarity with the country’s historical and constitutional roots.

We talk a lot about our fiscal deficit, and we need to address that. But our civic deficit may be a bigger challenge, and remedying that deficit is no less important.

Thank you.