I was asked to speak to participants in the local OASIS program about the interaction of the Constitution with municipal government, and about my experiences during the Hudnut administration. I decided to share it, both as a needed vacation from Trumpism and as a reminder that there used to be decent politicians in both parties…
When constitutional issues arise, most of us think of the federal government, and especially the Supreme Court. But the Constitution and the Bill of Rights apply to all levels of government, and are enforced by both state and federal courts—it’s what we mean when we talk about “the law of the land.”
There are differences in jurisdiction, of course—we have a federalist system, which means that some areas of the law are left to state and local governments—but those areas have to be consistent with the national Constitution. I am constantly amazed at how many people don’t know anything about federalism—that division of authority between the federal government and state and local governments—or about Separation of Powers or other basic aspects of America’s legal structure.
I really encountered this lack of “civic literacy” when I was at the ACLU. The ACLU defends the Bill of Rights, which is essentially a list of things that government can’t do. The Bill of Rights answers the question: who decides? Who decides what prayer you say, what political beliefs you hold, what books you read? In the United States, citizens get to make those sorts of decisions for ourselves, free of government interference.
Since the Bill of Rights only limits what government can do, the ACLU only sues government. Not only did I discover that a lot of people don’t know that the Bill of Rights only restrains government, I also discovered that a lot of people don’t know what government is.
Originally, the Bill of Rights applied only to the federal government. It wasn’t until passage of the 14th Amendment that states were required to extend the “privileges and immunities” of citizenship to their own residents. After the 14th Amendment was ratified, there was a series of decisions in which the Supreme Court ruled that the Bill of Rights also limited the authority of state and local government officials.
Evidently, a lot of people haven’t encountered the 14th Amendment: When I was Corporation Counsel, I issued an opinion that the 1st Amendment prohibited the City from doing something—I no longer recall what—and someone wrote an angry letter to the editor that began, “I read the First Amendment, and it says Congress shall make no law…” That’s an excellent example of why just reading the text of the Constitution—especially the text of only one amendment—won’t give you the whole story.
Speaking of stories…I was asked to share some of the highlights—and low points—of my three- year stint as Corporation Counsel (chief lawyer) of the City of Indianapolis, with a focus on how the Constitution and Bill of Rights affect municipal governments.
I was appointed Corporation Counsel by Mayor Bill Hudnut in 1977. To the best of my knowledge, I was the first woman to hold that position in a major metropolitan area, and my first encounter with a constitutional issue was a lesson in both sexism and freedom of the press: Indianapolis still had two newspapers then, and the evening News featured a “Gossip” box on the front page. When my appointment was announced, the Gossip box “item” was something along the lines of: a high-ranking official has appointed his most recent honey to an important position in City Hall. No names, but it wasn’t hard to figure out who they were talking about. (After all, as one newspaper had described me, I was a “divorcee.” We don’t hear that word much these days, fortunately…sounds pretty racy.)
On my second day on the job, I got a call from the U.S. Justice Department. At the time, the City was being sued for a history of race and gender discrimination in the police and fire departments; we ultimately entered into a consent decree, because Mayor Hudnut recognized that history and wanted to correct it. But the suit had just been filed a few months before the call from the Justice Department lawyer. He asked for Dave Frick, my predecessor, who had become Deputy Mayor. Dave’s Secretary explained that he was no longer Corporation Counsel and asked him if he would like to be transferred to the new Corporation Counsel. He said yes—and I picked up the phone and said “May I help you?” He said, “Yes, I’m holding for the new Corporation Counsel.” This was 1977, and there weren’t many women lawyers then; he clearly thought he was talking to a secretary. After a pause, I said “This is the new Corporation Counsel.” He was suitably embarrassed. (On the other hand, he was really easy to deal with after that.)
Within my first couple of months on the job, I confronted a pretty classic First Amendment Religious Liberty issue. (The First Amendment has two religion clauses: the Establishment Clause and the Free Exercise Clause; together, they mandate governmental neutrality in matters of religion). For many years, the City had erected a Nativity scene on Monument Circle at Christmas. Monument Circle was—and is—publicly owned. Erecting a religious display on government property is a violation of the Establishment Clause; it is an endorsement of religion—in this case, the Christian religion. The jurisprudence was very clear, and when the City was threatened with a lawsuit, I advised Hudnut that we would lose such a suit if it were to be brought.
Unlike so many of today’s politicians, Hudnut did not use the conflict as an excuse to grandstand. He could have made points with people who didn’t understand the Constitution by “defending” the display; instead, he used the incident as an opportunity to educate. We sold the nativity scene to the Episcopal Church across the street and they displayed it, still on the Circle, where it was equally prominent and totally Constitutional.
Mayor Hudnut—who had been a Presbyterian Minister before he was elected—took all kinds of heat for “attacking Christianity.”
I think this incident was the first time I realized that some people want their religious symbols on public property because they want government to endorse their particular beliefs. It didn’t matter to these folks that the nativity scene was still on the Circle, still easily viewed: they wanted the City to send a message that their beliefs were favored, that their religion made them “real Americans,” and that people who hold different beliefs should be considered second-class citizens. That message, of course, is precisely what the Establishment Clause forbids.
One of the things that the City’s legal department does is advise committees of the City-County Council when legal questions arise. I still vividly remember being asked to testify about a proposed ordinance to ban Rock concerts from City parks. A local Reverend had persuaded his City-County Counselor to introduce the ordinance, which as I recall was pretty explicit about the reason, which was to protect Indianapolis’ citizens from immoral lyrics. It wasn’t concerns about traffic or noise or other issues that are entirely appropriate for City government to consider.
This minister had brought a busload of his church members with him to this particular committee meeting, and they sat in the public hearing room waving small American flags. It was surreal.
I testified that the ordinance as written would violate the First Amendment’s Free Speech Clause. Freedom of speech requires government to be what lawyers call “content neutral:” government can restrict the time, place and manner of communications, to a degree, but it can’t pick and choose what messages get exchanged. I explained to the Committee (and the audience) that there were a number of things the City could constitutionally control—traffic, noise, sanitation—but that the Constitution would not allow censorship of certain kinds of music based upon disapproval of the messages being conveyed by the lyrics.
When I completed my testimony and turned to leave, the Pastor rose from his seat and yelled at me, “My bible is more important than your Constitution.” (I thought it was interesting that the bible was his and the Constitution was mine…)
Most of the Constitutional issues I dealt with at the City were (fortunately) a lot less “exciting” than that encounter. For example, during my three years in City Hall, City Legal defended a number of what lawyers call Section 1983 cases. Section 1983 is a provision of federal law that allows people to recover attorney’s fees if they win a lawsuit alleging that someone acting on behalf of City government violated their constitutional rights. It’s a very important safeguard, because many—probably most—people whose rights have been violated can’t afford a lawyer. If lawyers know that they will be paid by the city if they are successful, in other words, if they can prove that the City really did violate their clients’ rights, they are more likely to take meritorious cases—and more likely to decline sure losers.
As I noted previously, Mayor Bill, as we called him, was a minister, and sometimes his minister side pressured his Mayor side. For example, he really wanted to close down bookstores that sold sexually explicit books and magazines, and periodically he would suggest some creative—but constitutionally dubious—ways of doing that. I like to think I kept him constitutionally compliant while I was there, but after I left, the City passed a truly bizarre ordinance that tried to sidestep the Free Speech provisions of the First Amendment by defining “pornography” as sex discrimination.
The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. Some of you may have seen the story from this year’s 4th of July, when NPR tweeted out the Declaration of Independence, and got hundreds of angry emails from people who thought it was an attack on the President, or “communist propaganda.”
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. 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%
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.
America is the most diverse country on earth. What we have in common—what makes us Americans—is allegiance to a particular concept of law, a particular approach to self-government. When we don’t know what that approach is, or why our Founders crafted the system we have, we lose what holds us together, what makes us one nation.
To borrow a phrase from the Tweeter-in-Chief: that’s sad.