Faculty Perspective

Eric Lane

Eric J. Schmertz Distinguished Professor of Public Law and Public Service, Hofstra Law School, Executive Director New York City Charter Revision Commission (1987-1989), Special Counsel New York City Counsel 2001-2004, co-author of recently published Genius of America: How the Constitution Saved the Country and Why It Can Again

America 101

Starting this October, the United States Citizenship and Immigration Service will administer a new test for immigrants seeking American citizenship. The test is intended to be harder and more relevant than its predecessors. Replacing many of the more easily learned (and senseless) fact questions–"What are the colors of the flag?" "What colors are the stars on our flag?"–is a more meaningful series of questions about America’s constitutional democracy. Heralded as a real measure of "what makes an American citizen," this new test asks, for example, "What is the supreme law of the land?" "What does the Constitution do?" "The idea of self- government is in the first three words of the Constitution. What are these words?" and "What is the rule of law?"

From the Framers onward, Americans have always considered civic literacy critical for a thriving democracy. "[A] well-instructed people alone can be permanently a free people," noted James Madison, the father of the Constitution and fourth president, in 1810. Americans continue to agree. A 1997 survey by the National Constitution Center (NCC) found that 84 percent of Americans believed that for the government to work as intended, citizens needed to be informed and active. Three-quarters of those polled claimed that the Constitution mattered in their daily lives, and almost as many people thought the Constitution impacted events in America today.

Yet, despite this nod to civic literacy, too few Americans could answer the questions on the citizenship test or similar questions. Forty-one percent of respondents to the NCC national survey were not aware that there were three branches of government, and 62 percent couldn’t name them; 33 percent couldn’t even name one. Over half of all those answering the NCC survey did not know the length of a term for a member of the Senate or House of Representatives. And another NCC study found that while 71 percent of teens knew that "www" starts an online web address, only 35 percent knew that "We the People" are the opening words of the Constitution. A study by the Intercollegiate Studies Institute found that "the average college senior knows astoundingly little about America’s history, government, international relations and market economy, earning an ‘F’ on the American civic literacy exam with a score of 54.2 percent."

Things weren’t always this way; civics and current events courses were once common, even required, in American schools. But since the late 1960s, civic education in the country has declined. The main culprit in this sad tale is our educational system. "Civic education in the public schools has been almost totally eclipsed by a preoccupation with preparing the workforce of a global economy," writes former Harvard University President Derek Bok. "Most universities no longer treat the preparation of citizens as an explicit goal of their curriculum." The congressionally required National Assessments of Educational Progress confirms Bok’s point. A 1988 report found significant drops in civic knowledge since 1976; another in 2002 found "that the nation’s citizenry is woefully under-educated about the fundamentals of our American Democracy." And while some have questioned the continuousness of the decline, there is little dispute with the troubling, perhaps ironic, conclusion: As the role of government has enormously expanded over the last 80 years, and as our voting rolls have opened to more and more groups of people, efforts to prepare our citizens for their civic responsibilities have fallen precipitously.

And this only addresses our basic civic literacy. Citizens still need a deeper understanding of the Constitution, an advanced set of knowledge to evaluate the operation of our government and weigh its successes and failures. A more advanced set of questions might ask: What is the vision of human nature that underlies the Constitution? What is the primary task of American government? Does the Constitution favor process over product and, if so, why? What is a special interest group? How does the Constitution define the common good?

Our civic ignorance is putting our constitutional democracy at risk. It is a significant part of the willingness of Congress and the public to defer to executive claims of authority since 9/11, with little understanding of its negative constitutional consequences. More generally, as the government continues to expand into our daily lives, our very freedom depends upon every citizen’s ability to understand and respond to it. Civic education, retired Supreme Court Justice Sandra Day O’Connor recently noted, is our only hope for "preserving a robust constitutional democracy . . . The better educated our citizens are, the better equipped they will be to preserve the system of government we have." The only answer, then, is to reinject civic literacy into our educational system.

The ABCs of Civic Literacy

Preserving "a robust democracy," as Justice O’Connor called for, requires citizens to know and understand the Constitution, both its content and its context. At a minimum, every American should be able to answer every question asked of naturalized citizens in the new test, and they should know what their answers mean. For example, in this presidential election season, Americans should know that they vote for electors and not directly for the president, and why the Framers chose this method. Americans must also know the different branches of government, their respective governing roles, and why they have them.

But Americans must understand much more about the Constitution. What the Framers sent out from Philadelphia for ratification was more than just a description of the institutions and processes of a new government. It was a set of ideas and principles about government and democracy, the ones that have come to form our constitutional conscience.

The first is liberty. Initially, the idea of "liberty" held that Americans had a unique capacity to suppress self-interest for the public good in the conduct of public affairs. Through such "public virtue," Americans could live together harmoniously. Simple government was all they needed to protect their society from external threats and to regulate the behavior of those few miscreants who could not see the common need through the lens of their own self-interest. This attitude informed the Articles of Confederation, effectively depriving the Continental Congress of the power to unify or defend the country.

But by the Convention in 1787, that notion of liberty had proven unrealizable, even utopian. "We have probably had too good an opinion of human nature in forming our confederation," George Washington wrote in 1786, reflecting the chaos and oppression that had arisen from post independence experiment in simple majoritarian self-government. So the Framers recast the idea as a right to advocacy. This required that all of the nation’s broad array of interests (as the Framers narrowly saw them) had to be represented in the nation’s political processes. But it also demanded that for an interest to become law, it had to survive a complicated political process marked by a bicameral legislative body, separation of powers, and checks and balances. All of this required participation and debate, activities predicated on a robust civic literacy. The goal of the system was to protect liberty by thwarting majority impulses to dominate minorities.

The Constitution, as first ratified, had no bill of rights; the Framers originally thought individual liberty could be protected through limiting federal powers and the complicated law-making processes the Constitution established. They also thought a bill of rights would offer little protection from a government intent on its violation (an observation often proven right by American history). But, during the ratification campaign, the Framers became convinced that a bill of rights was necessary both to further protect the liberty of Americans from majority politics and to assure ratification.

Liberty through representation also led to several other critical ideas captured by what one scholar has called "conflict within consensus." Self or group interests would be pursued within Congress, but within a consensus that we are bound to one another by our shared belief in our Constitution and its principles, that the realization of our self-interest cannot be the only measure of our government’s legitimacy. From this flowed two other crucial ideas: compromise and tolerance. The Constitution itself was a set of compromises, and it assumed the vital need for compromise for the new government to function.

Through these principles–liberty, representation, compromise, tolerance–and their historical evolution, we formed our constitutional conscience. Madison described this as the "fundamental maxims of free Government," which become part of the "national sentiment" and "counteract the impulses of interest and passion." As with our own personal conscience, these principles must be first learned. And then they must be continuously relearned to resist the intense impulses of self-interest. That is why President Franklin Roosevelt thought that the Constitution is "like the Bible, it ought to be read again and again." It is also why upon his departure from office in 1989, Ronald Reagan cautioned Americans, "If we forget what we did, we won’t know who we are." This all-encompassing vision of civic literacy is demanding. But the fragility of our democracy requires no less.

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