Constitutional Literacy

A Twenty-First Century Imperative

Christopher Dreisbach

• Publisher: Palgrave Macmillan
• Year: 2016
• Print ISBN: 9781137567987
• eBook ISBN: 9781137567994
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book considers the status of constitutional literacy in the United States along with ways to assess and improve it. The author argues that pervasive constitutional illiteracy is a problem for both law enforcement agencies and for ordinary citizens. Based on the author's decades of teaching in law enforcement agencies around the country, this book argues for the moral and pragmatic value of constitutional literacy and its application in twenty-first century society. 

 

© The Author(s) 2016

Christopher DreisbachConstitutional Literacy10.1057/978-1-137-56799-4_1

Begin Abstract

1. Introduction

Christopher Dreisbach¹

(1)

Johns Hopkins University, Baltimore, MD, USA

End Abstract

On November 5, 2009, John Boehner (R-OH), Minority Leader of the US House of Representatives, took the podium at a Republican rally against a pending health care bill, waved a document defiantly, and declared:

This is my copy of the Constitution and I’m going to stand here with the Founding Fathers who wrote in the Preamble, We hold these truths to be self-evident, that all men are created equal, that they are endowed with the unalienable rights of life, liberty, and the pursuit of happiness…(C-Span 2009)

Boehner, encouraging participants to demand their constitutional right to make their own medical decisions, was wrong on two and possibly three counts. First, he was quoting the Declaration of Independence, not the Constitution of the USA. Second, the Declaration’s beginning, which some might unconventionally refer to as its preamble, begins “When in the course of human events....”; the passage Boehner was quoting comes later in the Declaration. Third, there is no explicit constitutional right to make one’s own medical decisions.

On September 18, 2013, Nancy Pelosi (D-CA), House Minority Leader, took the podium at the Center for American Progress and praising the women’s rights convention held in Seneca Falls, New York 165 years earlier, said.

Imagine the courage it took for those women to go to Seneca Falls and do what they did there, to even leave home without their husband’s permission, or father’s, or whoever it was. To go to Seneca Falls, and to paraphrase what our founders said in the Constitution of the United States: they said the truths that are self-evident, that every man and woman, that men and women were created equal and that we must go forward in recognition of that. (Center for American Progress 2013)

The Constitution says nothing about self-evident truths, and the American document that does, The Declaration of Independence, explicitly lists only men as being created equal.

Boehner and Pelosi are not the first public leaders to confuse the Constitution with the Declaration, nor are they apt to be the last. “Moral Majority” founder and Baptist minister Jerry Falwell (1980), for example,said, “Let us never forget that as our Constitution declares, we are endowed by our Creator with certain inalienable rights.” On February 28, 2009, talk show host Rush Limbaugh (2009) said,

We believe that the preamble to the Constitution contains an inarguable truth that we are all endowed by our creator with certain inalienable rights, among them life, liberty, freedom (sic), and the pursuit of happiness. (My emphasis)

In 2010, Sarah Palin (2010), former US Vice Presidential candidate and Tea Party activist declared that “Our Constitution, of course, essentially acknowledge[es] that our unalienable rights don’t come from man; they come from God.”

On February 13, 2014, Arenda Wright Allen, a federal judge and President Obama appointee, declared Virginia’s ban on same-sex marriage to be unconstitutional, claiming that “Our Constitution declares that ‘all men’ are created equal, surely this means all of us” (Eckholm, 2014). The Constitution does not declare this, nor was it originally all-inclusive.

Falwell and Limbaugh did not enter their professions by promising to support the Constitution. As governor of Alaska, Palin took an oath to the US Constitution, as she would have to if she realized her vice presidential or presidential aspirations. Judge Allen had to take a similar oath. Boehner and Pelosi had to utter the following to become US Representatives:

I, [name], do solemnly swear [(or affirm)] that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. (5 U.S.C. §3331)

At the Republican rally, Boehner noted his 19 years of public service; at the CAP Conference, Pelosi was celebrated for her 26 years in Congress. Yet, how could they support and defend the Constitution when they cannot tell it apart from the Declaration? Indeed, how many public servants, for whom an oath to the Constitution is a professional entrance requirement, know the Constitution well enough to protect it?

So far, we have examples of people who should know better than confusing the Declaration of Independence with the Constitution of the USA. These are only some examples of lack of constitutional literacy among sworn officials and public opinion leaders. Shortly after the assassination attempt on President Ronald Reagan, Secretary of State Alexander Haig announced to the media, and hence to everyone with access to those media,

Constitutionally, gentlemen, you have the President, the Vice President, and the Secretary of State, in that order, and should the President decide he wants to transfer the helm to the Vice President, he will do so. … As of now, I am in control here, in the White House, pending the return of the Vice President and in close touch with him. If something came up, I would check with him, of course. (Sibilla 2016)

Under the 25th Amendment, ratified in 1967, the order of succession after the President, is the Vice President, The Speaker of the House of Representatives, The President pro tempore of the Senate, and then the Secretary of State. We might give Secretary of State Haig a break, given the heat of the moment, but he did take an oath to the Constitution, first when he entered the military and again when he joined President Reagan’s cabinet. And as far as we know, he did not have to demonstrate his constitutional literacy before taking the oath.

Judging from the foregoing, from political rhetoric in public media, and from many anecdotes, including those I have acquired through my position teaching ethics to public safety professionals, constitutional literacy appears to be remarkably low. This is a problem both for sworn professionals who cannot protect knowingly what they do not know and for ordinary citizens who, in a republic, are supposed to help run the country through informed voting and participation in public conversations.

The lack of constitutional literacy where it should not be lacking is easy to demonstrate. The moral and pragmatic value of constitutional literacy are harder to demonstrate, but necessary to this book’s thesis. Identifying the nature of constitutional literacy and the means for assessing it and improving it require more effort still. These elements inform this book’s structure.

Chapter 2 examines the nature of constitutional literacy, offering this working definition: knowledge of the Constitution sufficient to invoke it properly. People may invoke the Constitution verbally or by implication through specific behavior, such as voting or participating on a jury.

Constitutional literacy is a matter of degree. Some people have sworn an oath to the Constitution, and thus, should know it well enough to know how to assess the success with which they are fulfilling that oath. Others have sworn no such oath, but their participation in civic life necessitates some familiarity with the Constitution nonetheless. Toward a more detailed definition, Chap. 2 identifies eight levels of constitutional literacy, thus offering an ostensive definition that exists in a continuum from basic literacy to the scholarly literacy that one would expect of the Supreme Court justices.

Moving beyond the anecdotal evidence showing a lack of constitutional literacy among some sworn officials and public opinion leaders, evidence with which we began this chapter, Chap. 3 offers three other types of evidence for pervasive lack of constitutional literacy. First are studies that legal scholars and foundations have done. These studies suggest a lack of constitutional literacy, the value of increasing constitutional literacy, and suggestions for effecting that increase. The second is a review of police basic training programs, with a focus on courses, units, or topics that specifically or obliquely refer to the Constitution. Third are the results of a test that I have administered over the years, most often to students at the beginning of my upper-level college course, Applied Ethics, the Constitution, and Society. These scores are notably low, given that most of the people who took the test are sworn police officers. The organization of this test serves as the foundation for assessing and promoting constitutional literacy, which Chaps. 5 and 6 discuss, respectively.

Chapter 4 of this text argues for the practical and moral value of constitutional literacy. Even if we agree on a definition of constitutional literacy and its notable absence, we may still ask, so what? In brief, sworn officials, as professionals, have a moral responsibility to do their job well. This entails good moral character in general and adherence to principles of professional ethics in particular. Good moral character is virtue. Virtue, as Aristotle claims (Nicomachean Ethics, 1105b20–1108b10), is the ability habitually to know the good and do the good. The good, he says, is a species of the perfect and as “perfect” means neither too little nor too much, the good is the mean between deficiency and excess. A virtuous professional, then, is one who is able to make professional and personal choices that are neither deficient nor excessive relative to the set of choices available to him. One who swears to protect and defend the Constitution ought to do so in a way that is neither excessive nor deficient. This requires the sworn professionals’ knowing what they are protecting.

Referring to professional ethics more specifically, we may describe professional ethics partly in terms of a set of minimum expectations for a morally good professional. (Bayles 1988). Thus, for example, a professional should be competent, diligent, honest, candid, loyal, informed, and committed to keeping one’s promises.

People might disagree on the scope and limits of each of these qualities. For example, what does it mean to be a competent defender of the Constitution? How might a sworn official’s loyalty to the Constitution clash with loyalty to constituents, colleagues, or family members? When, if ever, is it permissible to lie in defense of the Constitution? Whatever the ambiguities on this list and whatever one might want to add to or remove from this list, it stands to reason that if one’s base-line professional responsibility is to keep the promise to support and defend the Constitution, then one needs to know the Constitution well enough to evaluate one’s success or failure at fulfilling the responsibility. Thus, to the extent that the community has the right to expect its public officials to act with integrity, the community has the right to expect them to be constitutionally literate. And the community must be constitutionally literate enough to hold them to their word.

In the USA, whose primary political structure is putatively democratic, the responsibility for constitutional literacy rests with sworn officials and anyone who is able to participate politically. As legal scholar Toni Marie Massaro (1993) notes, “Americans tend to define themselves and their assumed rights in ref...

Table of contents

• Cover
• Frontmatter
• 1. Introduction
• 2. The Nature of Constitutional Literacy
• 3. The Lack of Constitutional Literacy
• 4. The Value of Constitutional Literacy
• 5. Assessing Constitutional Literacy
• 6. Improving Constitutional Literacy
• 7. Conclusion
• Backmatter