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CONSTITUTIONAL LITERACY A Twenty-First Century Imperative Christopher Dreisbach


Constitutional Literacy


Christopher Dreisbach

Constitutional Literacy A Twenty-First Century Imperative


Christopher Dreisbach Johns Hopkins University Baltimore, Maryland, USA

ISBN 978-1-137-56798-7 ISBN 978-1-137-56799-4 DOI 10.1057/978-1-137-56799-4

(eBook)

Library of Congress Control Number: 2016950640 © The Editor(s) (if applicable) and The Author(s) 2016 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Cover image: © D. Hurst / Alamy Stock Photo Cover design by Samantha Johnson Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Nature America Inc. New York


For America’s Peace Officers, the advance guard of constitutional protections.


PREFACE

The US Constitution matters. As the “supreme law of the land,” the Constitution is at the heart of civic life in the USA and central to the role that the USA plays on the global stage. In American civic life, public officials enter their profession by swearing an oath to protect, preserve, and defend the Constitution. Non-sworn USA citizens and visitors often invoke the Constitution in word and deed. Sometimes these nonsworn invoke the Constitution intentionally as a premise in a statement or conversation about their rights and responsibilities; sometimes these non-sworn invoke the Constitution implicitly when they vote, serve on a jury, or choose to obey or violate a law. The Constitution also stands firmly at the center of the USA’s involvement in world affairs: politically, socially, and economically. Never legally or morally free from the Constitution’s constraints, global representatives of the USA—whether from the military, business, politics, charitable organizations, or as private citizens—are bound by the Constitution and the laws it sanctions. All of this has been the case since New Hampshire was the ninth state to ratify the Constitution, in 1788. But thanks to the Internet and social media, more people than ever before have a chance to participate in the public conversation, whether it be about the community’s rights and responsibilities or the rights and responsibilities of the public officials who serve the community—and are members of it. In short, democracy has the chance to flourish in ways it could not have before the advent of the present technologies.

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Because of the same technologies the moral and legal spotlight on USA government officials and other participants in USA civic life has never been brighter. Reports of someone’s deeds, especially if heroic or outrageous, may “go viral” in an instant, with no thought to a presumption of the agent’s innocence or to getting the whole story. People may weigh into the public conversation with the possibility of a vast audience hearing, if not listening to, the contribution. At the same time, evidence suggests a pervasive lack of constitutional literacy among the sworn and non-sworn participants in USA civic life. In the absence of such literacy, fulfillment of the oath to the Constitution, discharge of non-sworn civic responsibilities, or the exercise of legal rights have no guarantee of success. To be sure, even the most constitutionally literate sometimes fail to act as they should or to construct a valid argument as to why one should act that way, but they are free from a lack of knowledge that compounds the problem. Thus, an increase in constitutional literacy is imperative on two levels: more people have to attain constitutional literacy, and even those with some degree of constitutional literacy could be more literate. Having said this, one faces at least the following questions: what is constitutional literacy? What evidence is there for its pervasive lack? So what—what value is there to constitutional literacy? How might one assess someone’s constitutional literacy? How might one promote or encourage constitutional literacy? Given the work on these questions so far, what relevant work lies ahead? The purpose of this book is to address these questions—in that order. The book is not primarily an attempt to add content to anyone’s constitutional literacy—there are many books that do this well. These books include annotated Constitutions, and such topics as American history, political and legal theory, and biographies of constitutional luminaries. This book offers some examples that might add to the reader’s repertoire, but the book’s primary purpose is to cast its vote for promoting constitutional literacy among sworn and non-sworn stakeholders in the Constitution. As a growing chorus attests, there is an urgency to this effort that makes better constitutional literacy imperative.


ACKNOWLEDGEMENTS

There are many people to thank for helping produce this book. First is Mireille Yanow, publisher at Palgrave Macmillan and a consummate professional with whom I have worked before. Her wisdom, enthusiasm, and kindness know no bounds. Second is my wife Rebecca, who took time out of her scholarly and professional pursuits to help me with mine. Rebecca’s help ranged from collecting and analyzing data and other information, suggesting better ways of making a point, and reading through the document for content, clarity, and consistency. Third is my friend, colleague, and constitutional mentor, Lawrence Coshnear, Esq. Larry has kept me well supplied with bibliographic and scholarly information that makes up a considerable portion of this book. Larry also offered invaluable suggestions for shaping my thought about this effort, noting especially the important difference between the anatomy of the Constitution and its physiology—the latter involving the Constitution put into practice. Fourth are all of my students from the world of public safety, who have let me try out on them many of my ideas for this book and who have taught me a great deal in return. Fifth is the Philosophy Group with whom I have met once a month since 1992. Like Larry Coshnear, a long-time member of this group, its members have patiently let me try out my ideas and develop my thoughts, and they have taught me a great deal in the bargain. Sixth is my friend Mark Komrad, MD, a polymath who graciously and frequently brings his intelligence and interests to bear in helping me re-right my scholarly efforts. He helped me see the difference between trying to add to one’s constitutional literacy and advocating for such an increase—with this book taking the latter tack. Seventh are the folks at The Evergreen ix


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CafĂŠ, especially the owners Sam and Caroline, who welcome people to stay as long as they wish, taking advantage of free Wi-Fi, good food and drink, and an eclectic ambiance that is perfect for thinking and writing. Eighth is my daughter Anna who helped me wade through some of the data from the test to which this book frequently refers. Ninth is my boss, Doug Ward, Director of the Division of Public Safety Leadership at Johns Hopkins University, who supported my work on this book in every way a gracious boss can. Tenth is my cat, whom I call Cat. Until recently I did not like cats, but she changed all that when in spring 2015 she walked into our house, decided to stay, and would never have taken no for an answer. She is a terrific companion who shows no signs of constitutional literacy. Of course, any shortcomings in this book are my responsibility alone, and I beg any reader who encounters such shortcomings to let me know, thus, helping me develop my constitutional literacy.


CONTENTS

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Introduction

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The Nature of Constitutional Literacy

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The Lack of Constitutional Literacy

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The Value of Constitutional Literacy

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Assessing Constitutional Literacy

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Improving Constitutional Literacy

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Conclusion

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Index

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CHAPTER 1

Introduction

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.

© The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4_1

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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


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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.


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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


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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 reference to constitutional principles more than any other tenets” (70). In addition, Massaro argues, “constitutional literacy is important not only to intelligent self-governance but also to the mutual respect and toleration that is necessary for peaceful co-existence within a heterogeneous culture” (129). This obligation applies at least to eligible voters, those involved in citizen-public servant relations, and those capable of critical consumption of news and other political information.


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Legal scholar Ilya Somin (2004) sums this up nicely: “A largely ignorant electorate will often be unable to impose majoritarian control over elected officials” (1297). So the value of constitutional literacy is clear, both for the sworn official and the non-sworn citizen. Chapter 5 offers one approach to assessing constitutional literacy. It is based on the structure of the test from which I get some of the evidence for a pervasive lack of constitutional literacy. This approach starts with two basic pairs of distinctions: historical v. thematic, and internal v. external. Anecdotally, it is clear that people who invoke the Constitution are often more comfortable speaking in one of these four areas than in the other three. Thus, a test for Constitutional literacy that incorporates this model might be better at pinpointing where individual and collective strengths and weakness lie regarding constitutional literacy. This pair of distinctions yields four broad categories: internal themes, internal history, external themes, and external history. Within each category, questions may be easy, moderately difficult, or difficult. Here is an outline of the exam topics. Chapter 5 explicates the model and offers examples of questions at the various levels of difficulty. Category I: Internal themes • Requiring Reading the Constitution Only • Distinguishing the Constitution from Other Texts: • Requiring Extra Thought beyond a Reading of the Constitution, such as Interpretation or Research Category II: Internal history • Pre-Ratification (before 1787) • Post-Ratification (after 1787) Category III: External Themes • Directly Relevant to the Constitution • Indirectly Relevant to the Constitution Category IV: External history • Pre-Ratification • Post-Ratification


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– Directly Relevant to the Constitution – Indirectly Relevant to the Constitution Chapter 6 offers suggestions for improving constitutional literacy at different educational levels, both formal and informal, using the test described in Chaps. 3 and 5 as a proto-curriculum. Areas for improvement include the classroom, professional development for sworn officials, and public discourse. Chapter 7 concludes the book with a summary of findings and suggestions for next steps in considering constitutional literacy. The scope and limits of this book point to two sorts of next steps: those that follow this book’s lead and those that might contribute to constitutional literacy in other ways. Those that follow this book’s lead will find plenty of opportunities to add to the information that I have included, refine the test that serves as a foundation for three of the chapters, and suggest improved ways of assessing and interpreting the data. Stepping outside this book, one might study material that already exists, whose primary purpose is to promote constitutional literacy, and expand that study to examine other countries that have constitutions. From the opening of the Constitutional convention to the present, political conversation in the USA has been raucous, robust, and frequently significant in terms of its impact on public policy and on individuals’ lives. At the same time, social and political life in the twenty-first century is as complicated and full of possibility as it has ever been, with technology leading the way in opening up the world and making vast amounts of information available that would have been unavailable or much harder to access in the absence of this technology. How much better would things be if a majority of the participants in a life governed by the Constitution were constitutionally literate? Such literacy is not just a luxury; it is imperative.

REFERENCES Aristotle. Nicomachean ethics. Trans. by W. D. Ross. 1941. In The basic works of Aristotle, ed. Richard McKeon, 1105b20–1108b10. New York: Random House. Bayles, Michael. 1988. Professional ethics, 2nd edn. Belmont: Wadsworth. Center for American Progress. 2013. Fair shot: A plan for women and families to get ahead [Conference]. American progress.org, September 18. https:// www.americanprogress.org/events/2013/08/22/72665/womensagenda-for-the-21st-century/. Included video of Nancy Pelosi. Specific


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URL for video: http://images2.americanprogress.org/CAP/2013/09/ Event_2013_9_18_pelosi.mp4. C-Span. 2009. Republican health care agenda [Video recording]. Washington, DC: C-Span, November 5. http://www.c-spanvideo.org/program/289825-1. Eckholm, Erik. 2014. Federal judge overturns Virginia’s same-sex marriage ban. New York Times, February 14. http://www.nytimes.com/2014/02/14/us/ federal-judge-overturns-virginias-same-sex-marriage-ban.html?_r=0. Falwell, Jerry. 1980. Listen America. New York: Doubleday. Quote Accessed 22 Jan 2016. http://www.wwnorton.com/college/history/archive/resources/ documents/ch36_02.htm. Limbaugh, Rush. 2009. Keynote address. The conservative political action conference, February 28. http://www.rushlimbaugh.com/daily/2009/02/28/ rush_s_first_televised_address_to_the_nation_conservative_political_action_ conference_cpac_speech. Massaro, Toni. 1993. Constitutional literacy: A core curriculum for a multicultural nation. Durham: Duke University Press. Palin, Sarah. 2010. Interview. The Bill O’Reilly Factor [Television series], May 6. http://www.foxnews.com/story/0,2933,592422,00.html. Sibilla, Chris. 2016. Al Haig and the Reagan assassination attempt: ‘I’m in charge here. Association for Diplomatic Studies and Training. [Website]. http://adst. org/2014/03/al-haig-and-the-reagan-assassination-attempt-im-incharge-here/. Somin, Ilya. 2004. Political ignorance and the countermajoritarian difficulty: A new perspective on the central obsession of constitutional theory. Iowa Law Review 89: 1289–1368.


CHAPTER 2

The Nature of Constitutional Literacy

INTRODUCTION: WRITS OF ASSISTANCE AND THE 4TH AMENDMENT Consider the oft-invoked 4th Amendment to the Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Knowledge of what this Amendment says indicates constitutional literacy at a basic level. In public discourse the 4th Amendment is invoked frequently in principle, if not verbatim, alongside the 1st Amendment (freedom of speech and religion), the 2nd Amendment (the right to bear arms), the 5th Amendment (the right to an attorney and the right not to incriminate oneself), and the 14th Amendment (due process and equal protection under the law). Also, descriptions of police basic training that cite Amendments specifically cite the 4th Amendment more than any other. Knowing the meaning and history of the 4th Amendment suggests a higher degree of constitutional literacy than merely knowing its verbal content. This meaning and history also remind us that the full scope of constitutional literacy is beyond the document itself and includes knowing its history and philosophical influences. © The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4_2

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A key moment in the genesis of the 4th Amendment occurred in February 1761, 30 years before the Amendment was ratified, when attorney James T. Otis challenged the legality of writs of assistance. A writ of assistance was a warrant issued by the Royal Court of England. The warrant allowed its holder to search any premises the holder suspected of hiding smuggled goods, without the holder having to seek a warrant for each instance of suspicion. Upon its issue, the warrant was valid for the life of the monarch, plus six months, and could be transferred at the holder’s discretion. By 1761, the American colonists were showing clear signs of discontent with Parliament’s treatment of them. The colonists were especially unhappy with taxes imposed on them without their input. One sign of this discontent was growing protests about the writs of assistance. In 1761, the Royal Court of Massachusetts agreed to hear a case challenging the legality of the writs. James T. Otis, as the local advocate-general, was supposed to defend their legality. Instead, he resigned his post and agreed to represent a group of Boston merchants pro bono in challenging the writs’ constitutionality. Twenty-six-year-old John Adams (1818) witnessed Otis’s plea and many years later would claim that this was the tipping point at which the colonial majority shifted from loyalists to revolutionaries: The child independence was then and there born, [for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. (137)

Standing before the judges, Otis (1761) opened with his promise: to my dying day [to] oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is.

Otis acknowledged that such writs were acceptable in ancient English law, but the law had long since recognized that the only legal warrants were those “to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed.” Therefore, Otis claimed, writs of assistance were illegal under English common law and thus under the English Constitution. Given the legal necessity of a warrant being specific, Otis attacked writs of assistance on four grounds: their universality, which subjected everyone to them


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without further proof of probable cause; their perpetuity, which left their holders unaccountable for any abuse of the writs’ authority; the ability these writs gave to enter any shop or house at will without an invitation; and the power they gave to even the most “menial servants” of the holders to act with impunity against property owners. Invoking jurist William Blackstone’s claim that a man’s home is his castle, Otis (1761) declared that “This writ, if it should be declared legal, would totally annihilate this privilege.” The court rejected Otis’s plea and in 1765 Otis published a pamphlet in which he repeated that the writs of assistance violate the British Constitution going all the way back to the Magna Carta. In 1767, in response to Otis’s crusade and other worrisome colonial agitation, Parliament responded with the Townshend Acts. These acts, named after Charles Townshend, England’s Chancellor of the Exchequer, were divided into four parts. Part three increased the ways and opportunities for authorities to catch smugglers, including a re-affirmation of the writs of assistance. Parliament repealed three of the four acts in 1770 but kept the second act, which taxed several imports including tea. Objecting to “taxation without representation,” The Sons of Liberty rebelled against this act in 1773, destroying a shipload of tea in the Boston Harbor—an event history would call the Boston Tea Party. By now, in hindsight, the American Revolution was a certainty. So we have the well-known 4th Amendment, and we have the less wellknown history behind it—with James T. Otis as a focal point, but going back at least to the Magna Carta. As we turn to the nature of constitutional literacy, we realize it must exist on several levels or in different degrees.

THE NATURE OF CONSTITUTIONAL LITERACY A Working Definition So what is constitutional literacy? Basically, it is knowledge of the Constitution sufficient to invoke it properly. One might invoke it verbally, but one might also invoke it implicitly through actions such as voting, for example. An ordinary conversation between two unsworn people might not require a lot of familiarity with the Constitution. In a debate among Supreme Court Justices, the necessity of constitutional literacy is high. In between come requisite levels of constitutional literacy for sworn officials, public opinion leaders, and citizens engaged in civic life.


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This basic definition of constitutional literacy may be too simple. As law professor Melissa Hart (2013) notes, “The concept of constitutional literacy is not uncontroversial” (825). She adds, “What is constitutional literacy and how is it different from civic literacy? Is constitutional literacy a neutral concept? If it is not, does that matter?”(825). It may be common to conflate civic literacy with constitutional literacy. But civic literacy is a broader concept taking into account the structure and roles of government and its relationship to the governed. Constitutional literacy starts with knowing the document itself and moves out in concentric circles of knowledge and understanding, as the level of constitutional literacy required for the task at hand increases. One can be functionally constitutionally literate without knowing about James Otis’s attack on writs of assistance; one is not functionally constitutionally literate if one does not know the basic import of the 4th Amendment. For all that, the concept of constitutional literacy is ambiguous, and therefore controversial. For one thing, there is a debate about whether constitutional literacy is primarily about the general principles behind the Constitution or specific facts in and about it. My constitutional mentor, attorney Lawrence Coshnear, Esq., describes this as the difference between the physiology of the Constitution and its anatomy. Harvard Law School Professor Mark Tushnet (2012) claims that constitutional education should focus on civic capacity over factual knowledge. Thus, constitutional literacy is as much about what a person can do as what a person knows. The founders of the We the People Program, at the Center for Civic Education (2014), agree. The program’s curriculum Provides upper elementary, middle, and high school students with a course of instruction on the history and principles of the United States constitutional democracy. Critical thinking exercises, problem-solving activities, and cooperative-learning opportunities help develop intellectual and participatory skills while increasing students’ understanding of government institutions and fostering attitudes that students need to participate as effective, responsible citizens.

The Marshall-Brennan Constitutional Literacy Project puts laws students as teachers into public high schools, where the curriculum focuses on constitutional rights as supported by court decisions, rather than focusing on an anatomy of the Constitution and its history and philosophical underpinnings.


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Toni Massaro (1993) regards constitutional literacy as the general literacy minimally necessary to study the Constitution, where our opening definition describes such literacy as what is minimally necessary to invoke the Constitution properly. Irish commentator Fiona de Londras (2012) defines constitutional literacy as “an awareness of the history, content and impact of the Constitution both as a reflection of national values and as the basis for a constitutionalist limitation on what the state can and cannot do.” Although she refers specifically to Ireland’s Constitution, the definition is a useful addition to our collection of possible definitions. Here the emphasis is on the Constitution’s physiology rather than its anatomy. Public scholar Betsy Strauss (2015) offers a blog with the title “Constitutional Literacy…What does it really mean?” But she does not answer the question, contrary to the title’s promise, even though she says “I have learned that starting with definitions is vitally important to understanding anything.” Instead, she refers the reader to Michael Farris’s (2011) Constitutional Literacy Course—a set of 25 DVDs aimed at high school students, especially homeschoolers. Rather than offer a definition of constitutional literacy, Farris calls citizens to arms, warning them that the current state of affairs in government is unacceptable, and that, citizens have a duty to throw out the malfeasant officials. The course itself is rich in information about the US Constitution and about Farris’s interpretation of it; but there is no clear, accurate, and useful definition of constitutional literacy. So far, we have identified a number of ways of thinking about, and possibly defining constitutional literacy. Some emphasize knowledge; some emphasize action. Concerning knowledge, Massaro regards constitutional literacy as the capacity to study the Constitution; the group Human Rights in Ireland regards constitutional literacy as knowledge of the Constitution’s anatomy and physiology, and the Marshall-Brennan Project regards constitutional literacy primarily as knowledge of one’s constitutional rights. Concerning action, Mark Tushnet, the We the People Program, and Michael Farris regard constitutional literacy as the capacity for civic engagement, with Farris highlighting engagement that aims at fixing a broken government. Our preliminary definition attempts to incorporate both action and knowledge: regarding constitutional literacy as knowledge of the Constitution sufficient to invoke it properly, recognizing that such invocation is an action—whether by words or by implication—and such invocation will occur at different levels of complexity and purpose.


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Deciding among these and other possible definitions of constitutional literacy depends in part on what sort of definition we seek. There are four types of definition: analytic, stipulative, dictionary, and ostensive. It is tempting to look for a definition of constitutional literacy among the first three, but the fourth type might be the most useful in our case. Four Types of Definition Analytic An analytic definition replaces the word one wants to define with a word or phrase that means the same thing. For example, “A bachelor is an unmarried man.” “Bachelor” and “unmarried man” mean the same thing, and the word “is” acts as an equal sign: “Bachelor=unmarried man.” This definition might be useful, for example, when someone just learning the English language understands what “unmarried” and “man” mean, but has not yet learned the meaning of “bachelor.” Our working definition of constitutional literacy is that it means, at least, knowledge of the Constitution sufficient to invoke it properly. On its face, this looks like an analytic definition. If it is, it is not too helpful. For one thing, it assumes certain fixed connections between “literacy” and knowledge, and an unambiguous meaning of “constitutional” when applied as a qualifier to “literacy.” Even if we could demonstrate this connection in an unambiguous way, an analytic definition might not be the most helpful. To see the limited usefulness of an analytic definition, consider a young child’s request for a definition of an orange. Initially, she may believe that an orange is any edible sphere: tomatoes, peaches, apples. But in time, she learns to tell the difference between oranges and other similarly shaped fruit and vegetables. She probably does not learn this from an analytic definition. Such a definition might look like this: 1a: a globose berry with a yellowish to reddish-orange rind and a sweet edible pulp b: any of various small evergreen citrus trees (genus Citrus) with glossy ovate leaves, hard yellow wood, fragrant white flowers, and fruits that are oranges. (Orange 2016)

Even if the child listened to this whole definition, it would not help her learn what an orange is.


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Defining constitutional literacy is more like defining an orange than like defining bachelor. There may be an accurate analytic definition of “constitutional literacy,” but it would be useless to those who want to know what constitutional literacy is or to those who disagree on the scope and limits of its meaning. Stipulative To offer a stipulative definition is to define a word by consensus. In wood shop, the students and teacher may agree that “plane” refers to a tool for shaving wood. People in a geometry class or an aerodynamics class would find that particular definition of “plane” to be useless. It is tempting to define constitutional literacy stipulatively so that we can simply agree that, for example, constitutional literacy means knowledge of the Constitution sufficient to invoke it properly, without the need for further demonstration. This book presumes this definition as a useful place to start. But some might object that it is too subjective. Constitutional literacy may be the sort of knowledge we describe, but if so, this is not just because we have taken a vote and decided it is so—no matter how we vote there is a chance we might be wrong. We may want more objective criteria for constitutional literacy, against which we can test the proposition that constitutional literacy is the sort of knowledge our working definition proffers. Let’s return to the little girl and the orange to see the limited usefulness of a stipulative definition. If the girl asks her father, “Daddy, what’s an orange?” she will not settle for the answer, “Honey, in our house we have taken a vote and decided that orange means a particular kind of fruit with a particular texture and taste.” The child has no interest in creating a name for something; she wants to know what object exists that goes by that name. Dictionary A third type of definition is a dictionary definition. The American Heritage Dictionary has two entries for “orange” and no entries for “constitutional literacy.” It defines “constitutional” thus: 1. Of or relating to a constitution: a constitutional amendment. 2. Consistent with, sanctioned by, or permissible according to a constitution: a law that was declared constitutional by the court; the constitutional right of free speech.


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3. Established by or operating under a constitution: a constitutional government. 4. Of or proceeding from the basic structure or nature of a person or thing; inherent: a constitutional inability to tell the truth. 5. Of or relating to one’s physical makeup. 6. A walk, taken regularly for one’s health. (Constitutional 2016)

And “literacy” thus: 1. The condition or quality of being literate, especially the ability to read and write. 2. The condition or quality of being knowledgeable in a particular subject or field: cultural literacy; biblical literacy. (Literacy 2016)

We have in mind the first entry from “constitutional” and the second entry from “literacy,” although some might insist on including the first entry from literacy as well. In any event, we are not interested merely in how people use these words—like the little girl, we want to know what something is. A dictionary merely describes the current usage of a term, it does not declare whether that usage corresponds to reality. Besides, how useful would it be to respond to the little girl’s inquiry by telling her to consult the dictionary? Ostensive A fourth and underrated type of definition is definition by example. Eventually, the little girl will be able to distinguish oranges from other edible spheres because she will have experienced enough oranges and non-oranges to get the difference. When and how this works are subjects for scholarly research but need not concern us here. The point is that the little girl did not arm herself with a formal definition of orange and then go looking for objects that fit the definition; she let the objects speak for themselves until she was able to distinguish oranges from non-oranges. We might take the same tack as the little girl and look at examples of constitutional literacy—or examples of constitutional illiteracy—for elements to include in our definition. In Chap. 4 we will consider evidence for significant lack of constitutional literacy, with an eye toward identifying ways to improve it. This will help us to see what constitutional literacy is not and thus, by examples, what it must be.


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We have decided that neither an analytic definition of constitutional literacy nor its dictionary definition(s) seems useful, even if such were possible. It is easy to generate examples of constitutional illiteracy—we did this in the opening chapter of this book—and from these examples we might articulate an ostensive definition of constitutional literacy. We may also continue with our stipulative definition, namely, knowledge of the Constitution sufficient to invoke it properly. Even if we stick to a stipulative or ostensive definition, we can do better than we have so far. One way to proceed is to think about degrees or levels of constitutional literacy. Another is to think about how to construct an assessment tool for constitutional literacy. We will look at the first of these in this chapter and the second of these in Chap. 5. I have used both approaches in my course, Applied Ethics, the Constitution, and Society, an upper-level college course in Johns Hopkins University’s Division of Public Safety Leadership. I have also used them in one- and two-day ethics courses for various federal, state, and local law enforcement agencies. Although these approaches should be developed and implemented with more empirical rigor than I offer here, they have demonstrated the severe limits of many—if not most—participants’ knowledge of the Constitution. This quasi-experiment has, in turn, whetted participants’ appetites for more conversation and education about the Constitution and has indicated areas of constitutional literacy most in need of attention. Eight Levels of Constitutional Literacy The first approach posits eight levels of literacy, in ascending order of quantitative complexity relative to the knowledge of the Constitution’s basic anatomy. We may distinguish each level by a brief description and examples of what one might be expected to know at this level. Level 1: The ability to distinguish the Constitution from other documents, most notably, the Declaration of Independence. We opened with examples of sworn officials and unsworn opinion leaders confusing the Declaration of Independence and the Constitution. But they are different, for reasons which emerge as the level of constitutional literacy rises. They have different histories and verbal content (Level 2–4). Thus, arguments concerning their meaning differ (Level 5). Since the Declaration has no standing in court, it plays no role in court decisions. The Constitution, on the other hand, is central to any court decision.


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The sixth level of literacy includes familiarity with the more famous court cases. The Declaration’s underlying theories of law, rights, and justice differ from the Constitution’s, so a high level of constitutional literacy, the 7th level in our case, includes familiarity with key disagreements about the nature of law, rights, and justice, and which theories about each are reflected in the Constitution as opposed , for example, to the Declaration. Finally, Level 8, leaving behind any comparison of the Constitution with the Declaration, involves familiarity with the more arcane debates about, for example, the history and nature of constitutional interpretation. Let’s take a longer look at each. At Level 1, one should be able to decide for each following example whether it is from the Constitution. This requires little more effort than reading through the Constitution carefully. The low level of difficulty is in deciding whether the passage is from the Constitution. If it is not, the quotation’s source may be more difficult to identify. Consider the following examples. • We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Clearly, at least from the work we have done so far in this book, this selection is from the Declaration of Independence, not the US Constitution. • Government of the people, by the people, for the people, shall not perish from the earth. This is so common a refrain, and it sounds constitutional, so one might mistakenly claim that it is from the Constitution. It is from Lincoln’s Gettysburg Address. • The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof. This is from Art. I, sec. 3 of the Constitution. • No Soldier shall, in time of peace be in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. This is the 3rd Amendment to the Constitution • The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war… This is from the Articles of Confederation, Article IX. Article I, Section 8, Clause 11 of the Constitution gives Congress the power


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to declare war; but Article II, Section 2 gives the President the responsibility of making war, as the Commander-in-Chief of the US Army and Navy. Level 2: Knowledge of the basic history and basic anatomy of the Constitution. At this level, one should know, for example, when the Constitutional convention convened (May 25, 1787); when the Constitution was signed (September 17, 1987); when was it ratified (September 13, 1788); how many Articles it has (7); how many Amendments (27); and what, in general, each Article or Amendment is about. Consider the following examples. • Which Article is about the judicial branch? Article III. • Which Article is about the Amendment process? Article V. • Which Amendment abolishes slavery? The 13th Amendment. • Which Amendment claims that rights not specifically mentioned are retained by the people? The 9th Amendment. • What is the minimum age for a US representative? A US Senator? The President of the USA? 25, 30, 35, respectively. Level 3: Knowledge of certain significant details from the Articles and the Amendments. These include, for example, the requirements for being elected to, appointed to, or removed from federal office; the length of terms of office; the scope and limits of the powers of each office; and the general rights and responsibilities that the Amendments create for individual citizens and for the government. Consider the following examples. • The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. What are excises? Taxes on domestic consumption, goods, and services.


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• The Constitution gives Congress the power to grant Letters of Marque and Reprisal. What in plain English, is this power? The power to allow private ships to commit what otherwise would be considered piracy. • What is a Bill of Attainder? Legislative punishment of a person without a trial. • To whom does the Constitution give the power to select the President? The states, unless there is a tie, in which case the House of Representatives makes the final decision. Level 4: Knowledge of most details of each Article and Amendment and the history surrounding its creation and ratification. Knowledge of James T. Otis and the writs of assistance might reflect this level. Consider the following examples. • Was the express purpose of the Constitutional Convention to replace the Articles of Confederation with a new system of government? No. The express purpose of the convention was to modify the Articles to enable greater national ability to form a military and collect taxes. The people planning the convention knew that the effect, if successful, would be to replace the Articles completely. • In each state, who ratified the Constitution, a state convention or the state’s legislature? A state convention (Art. VII) • The 19th Amendment gave women the vote. Could women in the United States vote before then? • Yes. Each state decided voter qualifications (Kelly 2013). Beginning in 1890, Wyoming allowed women to vote. And from 1776 to 1807 women in New Jersey who owned property could vote. • Did all thirteen states have representatives at the Constitutional Convention? No. Rhode Island refused to send a representative and under the Articles of Confederation, which required unanimous consent among the states to make any significant changes to it, that should have been the end of the Convention. To remove this obstacle, the signed draft of the Constitution required only three-fourths of the states to ratify it. Of course, other states at their own risk would be free to live outside of the protection of the USA.


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Level 5: Familiarity with the more important arguments for the various elements of the Constitution. The Constitution offers no arguments for its contents unless one considers its Preamble to contain the premises for which the rest of the document is an argument. Why does the President serve four years, instead of two or six, for example? Why must a candidate for the Senate be at least 30 years old? Why do Supreme Court Justices get to serve for life? The Constitution neither explains why nor offers a defense for these declarations. If the Preamble is a set of premises, then we are left to wonder why or how a four-year presidential term, rather than some other configuration, would help form a perfect union, provide for the common defense, etc. Concerning the seven Articles, the best place to find arguments for them is the Federalist papers—a set of 85 editorials, written between October 1787 and August 1788, inclusive, each appearing in one of three New York newspapers: The Independent Journal, the New York Packet, and the Daily Advertiser. Writing under the pseudonym “Publius,” Alexander Hamilton (who wrote 52 papers), James Madison (28), and John Jay (5), took turns writing editorials with the goal of convincing New  York to ratify the Constitution. The basic argument of the collection of papers was simple: 1. A federal government is better than the alternative (especially the confederacy created by the Articles of Confederation). 2. The federation that the Constitution proposes is better than other federal models. 3. The only way to institute this government is for at least nine states to ratify the Constitution. 4. New York may be the difference between ratification and defeat. 5. Therefore, New York should ratify the Constitution. In making this argument, the Federalist devotes each paper to a particular part of the Constitution itself or to explaining the debate that took place during its development. Thus Premise 1: A federal government is better than a confederate government. (Papers 1–51) (a) Introduction (1) (b) Government Responsibility (2–22)


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1. Dangers facing the United States (2–14) a. Foreign Dangers (2–5) b. Domestic Dangers (6–10) c. Benefits of s Strong Union (11–14) 2. Problems with Confederacy (15–22) (c) Power Needed (23–36) 1. Defense (23–29) 2. Taxation (30–36) (d) Drafting the Constitution (37–51) 1. The Convention (37–40) (a) Objections (37–38) (b) Republican Form of the Plan (39–40) 2. Federal Powers (41–44) 3. State Powers (45–46) 4. Separation of Powers (47–51) Premise 2: The proposed federal plan is best (a) The Legislative Branch (52–66) 1. House of Representatives (52–61) 2. Senate (62–66) (b) The Executive Branch (67–77) 1. Objection; Electoral College (67–69) 2. Unity, Duration, re-eligibility, Support (70–73) 3. Powers (74–77) (c) The Judicial branch (78–83) (d) Miscellaneous (84) (e) Ratify Now! (85)


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The Constitution was ratified when New Hampshire became the 9th state to do so, on June 21, 1788, over a month before New York ratified it on July 26, 1788, so the primary purpose of the Federalist papers was moot. But they remain the best argument for the Constitution, both in comprehensiveness and in coming from participants in the Constitution’s construction. Concerning the 27 Amendments, since only the 2nd Amendment contains its own argument—“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed”–one has to look elsewhere for the premises underlying the Amendments, such as transcripts of legislative debates about the Amendments, Supreme Court decisions, the history of the disagreements that led to the Amendment, and scholarly texts (Levy 2001; Cogan 2015). These arguments are of three sorts: empirical, a priori, and from authority. Among the empirical arguments are those that demonstrate the utility of a practice that worked before the Constitution was written and the failure of a contrary practice in the past. An example of the former would yield this question, for example: • Of the following pre-constitutional documents, which recognizes the right to free speech: The Magna Carta, The English Bill of Rights, The Massachusetts Bay Colony Body of Liberties, or all of the above? The Massachusetts Bay Colony Body of Liberties. An example of the latter would yield a question of the following sort: • Did the 6th Amendment right to counsel contradict English law? Yes, because in English law the judge was expected to protect the defendant’s rights. Among the a priori arguments are those that appeal to common sense and those that present as axiomatic. An example of an appeal to common sense is the “Great Compromise,” which occurred in the Constitutional convention. This compromise called for a bi-cameral legislature consisting of a Senate with equal representation for each state, and a House of Representatives with representation proportional to the state’s population. This was seen to be superior to the New Jersey plan, which called for a unicameral legislature in which each state had the same


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number of representatives, and the Virginia Plan, which called for a bi-cameral legislature in which membership of each chamber was based on population. A test question in this vein could be, for example, • At the Constitutional Convention, which plan called for a unicameral legislature in which each state had one vote: The Virginia Plan, The New Jersey Plan, The Maryland Plan, or the Great Compromise? The New Jersey Plan. As for appeals to axioms, consider this test question, for example: • To which Amendment was Justice Joseph Story referring when, in 1833, he posited the duty to protect “that great right of the common law, that a man’s house shall be his castle”? The 3rd. In addition to empirical and a priori arguments for particular elements of the Constitution, there are appeals to authority, most commonly the US Supreme Court, which will, in some decisions, make the case for the constitutional element that serves as a premise for that decision. There is more to say about the Supreme Court in our discussion of the next level of literacy, but here is an example of a question that pertains to this area: • Did Marbury v. Madison (1803) explicitly establish that “the federal judiciary is supreme in the exposition of the law of the Constitution”? No. Although this case is often cited as the point at which the Court laid claim to this power, it was not so explicitly stated until the Court’s decision in Cooper v. Aaron (1958); and repeated in Baker v. Carr (1962). Level 6: Familiarity with the more famous court cases “More famous court cases” is a subjective phrase, but we would expect people at this level of constitutional literacy to have heard about, if not know in detail, cases such as Marbury v. Madison (1803), Plessy v. Ferguson (1896), and Brown v. Board of Education (1954). With a little effort, one could expand this list considerably. Formal training in the Constitution often focuses on court decisions, rather than on a careful reading of the Constitution itself, consideration of its historical underpinnings, or evaluation of arguments such as those in the Federalist. This is true, for example, in police academies where recruits learn


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about the important court cases affecting police work, such as Miranda v. Arizona (1966) and Terry v. Ohio (1968), but there is no prescribed study of the Constitution in its entirety, or in its historical or theoretical contexts. Thus, when academy graduates take the oath to protect the Constitution, they often have no clear idea of what they are swearing to protect. Legal scholar, Sanford Levinson (1992) makes this point nicely: The United States Constitution can meaningfully structure our polity if and only if every public official—and ultimately every citizen—becomes a participant in the conversation about constitutional meaning, as opposed to the pernicious practice of identifying the Constitution with the decision of the United State Supreme Court or even of courts and judges more generally. (406).

Here are some examples of questions in this vein: • Did Section 1 of the 14th Amendment overturn the decision in Dred Scott v. Sandford, 1857? Yes. The Dred Scott decision held that neither Africans nor their ancestors could be US Citizens. Section 1 of the 14th Amendment says All persons born or naturalized in the USA, and subject to the jurisdiction thereof, are citizens of the USA and of the state wherein they reside. • Can a person be legally prosecuted for burning a cross, if it is an act of hate speech? Yes. Not as an act of speech, but as an act of arson. (R.A.V. v. St. Paul, 1992) • Which infamous 19th century Supreme Court decision did Brown v. Board of Education, 1954 overturn? Plessy V. Ferguson, 1896 (“Separate but equal”) • Prior to Roe v. Wade, 1973, could a woman get a legal abortion in the United States? Yes. Prior to 1973 each state could decide for itself whether to allow abortions. Roe v. Wade prohibits states from denying this right up through the 24th week of a woman’s pregnancy. Level 7: Familiarity with key disagreements about the nature of law, rights, and justice, and which theories about each are reflected in the Constitution as opposed, for example, to the Declaration.


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The Constitution implies specific theories of laws, rights, and justice. In the case of all three, the Constitution and the Declaration disagree. The law In the United States government officials promise to protect, defend, and preserve the Constitution of the United States of America. The Constitution defines itself as “the Supreme Law of the Land” (U. S. Constitution. Art. II, cl. 2), but Americans confuse three different theories of law at the cost of clear thinking about the law’s nature and scope. Natural law theory holds that some power higher than humans—God or nature itself—gives us our law. Legal positivism holds that human legislatures make law. Legal realism holds that judges make law. America’s prime examples of each include, respectively, The Declaration of Independence (1776), The U.S. Constitution (1787), and Justice’s John Marshall’s decision in Marbury v. Madison (1803). For natural law theory, the oldest of the three, a power higher than humans gives us the law and our task is to discern it, publicize it, and live by it. Its most famous American expression is in the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men… That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

Writing these words, Thomas Jefferson applied John Locke’s (1690) natural law views, but the text also reflects the older, more theological brand of the medieval theologian Thomas Aquinas who put a Christian spin on Ancient philosopher Aristotle’s theology. Aristotle (1941) agrees that moral principles come from nature. Theologically, he suggests that God is the perfect being toward which every other being strives, but God has no interest in us (Aristotle Metaphysics 1072a21–1073a12). Thus, says Aristotle, human interaction with nature and its laws need not go beyond sound science and rational thought. St. Thomas Aquinas, a Roman Catholic monk, embraced Aristotle’s ethics, but more theologically. Where Aristotle’s God has no interest in human morality, Thomas’ God is the first cause of everything, including


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nature and its moral laws (Thomas 1920, 1.2. q. 2, Art. 3). Since, for Thomas, nature acts according to laws and since God is their legislator, we can discern God’s will by understanding those laws, which we have a duty always to obey (1.2. q. 91, Art 1). We discern those laws through reason, says Thomas, which supports Aristotle’s virtue theory. Thus, Thomas combines Aristotle’s theology, his virtue theory, natural law, and Christianity into one package. With Thomas as its premier philosopher, Roman Catholicism declares, for example, that abortion is contrary to natural law, since abortion subverts the purpose of pregnancy, which is to produce life. Thomas combines belief in natural law with the belief that governments are naturally or divinely appointed (1.2. qq. 103–119). If government enacts a law that is contrary to natural law, the human law is “no law at all” (1.2. q. 91, Art. 1). Compare this to social contract theory, which holds that people create governments by contracting with each other to recognize a sovereign—a monarch, a group of aristocrats, or a democratic body—and to agree to a set of laws. Jefferson says this in the Declaration: to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….

He takes his cue from Locke and Thomas Hobbes (1651). Hobbes and Locke believe in natural law, but they also believe that people, not nature, create governments, and that governments create law through human legislation. Thus, on a foundation of natural law, Hobbes and Locke develop legal theories consistent with legal positivism. James Otis seemed to have both natural law and human-made law in mind when he argued that England’s issuing writs of assistance violated its own constitution. In contrast with natural law, legal positivism holds that (1) law is human-made, (2) law-makers can abolish the law, and (3) there is no necessary connection between the law and morality. In America, legal positivism’s most famous exemplar is the Constitution of the United States of America (1787). Contrary to the Declaration of Independence, the Constitution makes no mention of natural law or inalienable rights. In its preamble, the Constitution justifies itself “In order to form a more perfect union.” The federal legislature determines the law within the guidelines that the Constitution


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establishes and the Constitution allows Amendment of those guidelines (Art. V). But is legislation solely the province of the legislative branch? Legal realism says no. The Constitution calls itself the law of the land and requires the legislature to make all law. But that does not always happen in practice. Much of American law is the result of judicial decisions. The theory that recognizes this is legal realism—the view that the law is whatever the final judge in the matter says it is. Legal realism’s most famous defense comes in a 1930 essay by Judge Jerome Frank (1930). Justice Oliver Wendell Holmes (1897) had already endorsed the idea in his essay, “The Path of Law.” And America first sees legal realism in Justice John Marshall’s decision in Marbury v. Madison (1803). In 1803 William Marbury sued the Jefferson administration for failing to honor John Adams’ appointment of Marbury as a justice of the peace in Washington, D.C. Marbury had not received the official commission before the end of Adams’ presidency, and Jefferson refused to recognize the commission under his new presidency. As Jefferson’s Secretary of State, James Madison was the defendant in Marbury’s suit. The case went before the US Supreme Court, and Justice Marshall rendered the court’s decision. Marshall argued that the court was the wrong venue for the suit, since the Constitution authorized the court to hear such suits only on appeal and there had been no earlier case for Marbury to appeal. Historically more important was Marshall’s claim, as part of the decision, that the Supreme Court had the right to review any legislative or executive act for its constitutionality. In effect, the Supreme Court would have the final say about the validity of a law. This audacious usurping of legislative power persists to the present. If there was any protest against Marshall’s claim, the protest was unsuccessful. In 1897 Oliver Wendell Holmes defended legal realism, without calling it that, in his argument that all law is merely a prediction of what the judge will decide. Until that decision, the law is not settled. In 1930 Jerome Frank firmly established legal realism with his fictional case of the Blue & Gray Taxi Cab Company. The company is unhappy with its state’s decision in a lawsuit that the company has filed against another cab company and the railroad. Blue & Gray’s lawyer suggests that the company re-incorporate in another state and re-sue the organizations, so that the case may come before a federal court.


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The federal court’s decision is favorable to the company. The law in the first suit—the decision of the state court—has been overturned by the law in the second suit—the decision of the federal court—without any legislative involvement. The consequences of legal realism for the Constitution’s stakeholders are profound. They promise to uphold the law under the Constitution, but their efforts are for naught if the judge’s decision ignores or abrogates the law. For example, decisions such as Dred Scott v Sandford (1857) and Plessy v. Ferguson (1896) affirmed the legality of segregation, which in practice obliged police to uphold those laws, even though the court would eventually admit that all segregation laws were unconstitutional. An officer whose moral insight was ahead of his time would be stuck between the judicial law and constitutional law, where community practice favors the former. Today the debate in America between the legal positivists and the legal realists presents itself as a debate between “strict constructionists” and “judicial activists.” The former argue that judicial decisions should rest on the intent of the framers of the Constitution and that their intent came from absolute and thus unchangeable values. The latter argue that the Constitution is a living document that judges must interpret in the context of contemporary values and that the framers intended the Constitution to be adaptable to change. One way around judicial legislation lies in the constitutional Amendment process as the Constitution prescribes it (Art. 5). The Constitution allows for all but one proposal for change: congress may not consider a proposal to deprive a state of its representation in the Senate. Congress may consider any other Amendment to the Constitution, including a dismantling of the Constitution itself, and if two-thirds of congress and three-fourths of the states ratify the Amendment, it becomes law. For people in a hurry to change the law, the Amendment process is long and cumbersome. Some 11,000 Amendments have come before congress; congress has approved only 33 of them; and the states have ratified only 27 of them, with the 27th taking over 200 years to ratify (Agel and Greenberg 1987, 4). Rights A right, for our purpose, is the freedom to do something or refrain from doing something. For example, the Miranda warning (Miranda v. Arizona, 1966) tells arrested people of their right to counsel; they have


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no obligation to seek counsel. This contrasts with a duty, responsibility, or obligation to do something or refrain from doing something. If people come to trial and they testify, they have the obligation to tell the truth— they have no right to perjure themselves. American moral discourse makes much of rights, but the concept is ambiguous. This chapter has side-stepped one ambiguity by limiting the meaning of “rights” to “freedoms.” Some people might use the term to mean “interests” instead. Ethicist Peter Singer (1976), for example, holds that because animals can suffer they have an interest in not suffering, and thus have the right not to suffer. It would be odd to interpret this as meaning that the animal has a freedom not to suffer. Limiting ourselves to rights as freedoms will be sufficient for exploring the Constitution’s particular take on rights. There are three other types of ambiguities to consider concerning rights: inalienable rights v. conferred rights; positive rights v. negative rights; and legal rights v. moral rights. This consideration will yield at least eight different meanings of “rights,” as we shall see. An inalienable right is one that no one can take away or give away. The Declaration of Independence lists three; The US Constitution lists none. The Declaration accepts as self-evident that “the Creator” has endowed us with the “unalienable” rights of life, liberty, and the pursuit of happiness, but this notion of inalienability has problems. First, if one does not believe in a divine Creator, then one denies a fundamental premise of the Declaration. Even if one believes in a Creator, one would find it hard to prove that the Creator has endowed humans with these inalienable rights. The Declaration avoids proof by declaring that this endowment is self-evident, but Jews, Christians, and Muslims, for example, will not find anything in their sacred texts that suggests God granted these rights as inalienable. So it is not self-evidently true that “the Creator” has endowed humans with inalienable rights. What’s more, these rights appear self-evidently not to be inalienable. For example, police officers appear able to revoke a citizen’s right to life, to liberty, and to the pursuit of happiness. If in a justified shooting, an officer kills a perpetrator, hasn’t the officer alienated the person’s right to life? It would be a contradiction to object that the person’s right was inalienable, even though the officer took it away—that is, alienated it. It would be dogmatic to object that the person retained the right even though he lost his life. And it would be of no help to argue the right to life is an interest, which no one can take away, rather than a freedom, since the perpetrator in our case appears to have renounced that interest by acting so recklessly.


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The right to liberty faces the same challenge. Doesn’t any lawful arrest of somebody remove that person’s right to liberty? Or does the person lose the liberty, but retain the right? If the person retains the right, what value is there to a right that the person cannot exercise? The right to pursue happiness is even vaguer. What if someone’s pursuit of happiness interferes with another’s? And what if this interference is illegal or immoral? A person might consider himself happy only shooting at passing motorists. The motorists might deem essential to their happiness driving without being targets of a sniper. The sniper and the drivers cannot pursue their happiness at the same time, so their right to do so appears not to be inalienable. Moreover, the officer who prevented the sniper would be acting legally and morally. Since the Constitution does not posit any inalienable rights, contrary to presumption of many who suggest otherwise, the Constitution does not suffer from the challenges associated with inalienable rights. All of the rights in the Constitution are conferred. A conferred right is one that somebody with sufficient authority confers on another. If this authority rescinds the right or the authority loses its ability to confer that right, then that right no longer exists. All constitutional rights and court-decided rights are conferred and thus, may be taken away. The 2nd Amendment, for example, confers the right to bear arms, but the US government and citizenry could rescind this right through another Amendment. The US Supreme Court case Roe v. Wade (1973) confers on women the right to an abortion, but the Court has the power to overturn that decision. In addition to classifying rights as inalienable or conferred, we may classify them as positive or negative. Philosopher Isaiah Berlin (1969) makes this distinction in his essay “Two Concepts of Liberty.” A person has a positive right when someone else has a duty to help him exercise that right. If you and I enter into a legally binding contract for you to buy my house, your legal right to my house is directly connected to my duty to give you that house within that time, provided that you fulfill your part of the contract. In other words, you have a positive right to my house, and you can force me legally to help you exercise that right. A person has a negative right to the extent that no one else may interfere with the exercise of that right. In Berlin’s terms, these are liberties from coercion that interfere with the opportunity to exercise the right. Assume that in certain circumstances I have a right to brush my teeth.


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When I do have this right, no one may interfere with my brushing my teeth, but this does not oblige anyone to give me a tooth brushing. The rights that the Declaration of Independence enumerates appear to be negative. While no one may interfere with my right to life, liberty, or pursuit of happiness, no one has to help me live, help me retain liberty, or help me pursue happiness. The Declaration does claim that government has an obligation to protect these rights, but only in the sense of preventing others from interfering with them. Court-conferred rights may be positive or negative. Roe v. Wade does not oblige anyone to give a woman an abortion “on demand.” It only prevents anyone from interfering with the woman if she seeks an abortion through the 24th week of her pregnancy. No doctor in the country will violate a woman’s negative right to an abortion if that doctor refuses to give the woman an abortion; thus, the right to an abortion is a negative right. On the other hand, Miranda v. Arizona (1966), in conferring on an arrested person a right to counsel obliges the police agency to provide counsel if the person cannot afford one otherwise. Thus, an accused person’s right under Miranda is a positive right. The Constitution also confers both negative and positive rights. For example, the 1st Amendment right to establish religion is negative: government may not interfere with it, but government need not and cannot take steps toward establishing religion. On the other hand, the 6th Amendment right to face one’s accuser in court is a positive right. It obliges the prosecution to make the accuser available for public examination by the accused. A right is either inalienable or conferred, and it is either positive or negative. It also may be legal or moral. While the Supreme Court has declared that women have a legal right to abortion, there is disagreement about a woman’s moral right to abortion. In other words, while abortion is legal, it may not be moral. The 1st Amendment confers the negative right to free speech, including speech that might be morally offensive. What does all of this mean for the sworn official or for the unsworn stakeholders who wish to protect and exercise their constitutional rights? The professional has a duty to protect rights, but which rights? And whose rights? Not the rights that the Declaration of Independence enumerates. The American colonies broke away from England because King George III failed to respect or protect the “unalienable” rights of life, liberty, and the pursuit of happiness. But a sworn professional’s duty frequently requires him or her to abolish these rights when


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apprehending a suspect. Moreover, sworn professionals do not swear an oath to the Declaration; they swear an oath to the US Constitution, which enumerates no inalienable rights. Also, as a document of positive law, the US Constitution confers legal rights, but not necessarily moral rights. Justice James T. Otis thought that writs of assistance were unjust, but with what concept of justice was he working? Typically “justice” in American conversation about the Constitution refers to legal justice: a system in which elected representatives of US citizens make law; police and other members of the executive branch of government execute the law; and judges preside over an adversarial system of adjudication in criminal and civil legal complaints. All of this is supposed to occur within the constraints of the US Constitution. Otis argued that the justice he demanded occurred within the constraints of the English Constitution. One way to think about justice is to divide it into three complementary types: distributive, commutative, and retributive. Using the example of an apple pie, let’s look at each of these three types. I made an apple pie using only my ingredients. I grew the apples. I purchased the flour, sugar, and cinnamon. I used my own mixing bowls and pie tins. And I baked the pie in my oven, which is in my home, which sits on my land. Who has a right to some or all of this pie? This is a question of distributive justice. There are three theories of distributive justice: libertarianism, utilitarianism, and egalitarianism. Libertarianism claims that since I made the pie, I can do whatever I want with it. No one —not even a starving person—has a moral or legal claim to a piece of this pie. The Declaration of Independence sounds libertarian in declaring people’s inalienable right to life, liberty, and the pursuit of happiness. Libertarians would argue, for example, that government has no right to tax my earnings or draft me into the military against my will, since these would mean taking what is mine for the purpose of others without my consent. Opponents of libertarianism note that I would not have been able to make and enjoy my pie, without community support that includes, for example, laws that protect property and provide public safety officials such as firefighters. As John Stuart Mill (1859) puts it, “Everyone who receives


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the protection of society owes a return for the benefit” (Chap. 4). Thus, I owe something to others for the privilege of making what I wish to make. In this spirit, the utilitarian theory of justice claims that I must distribute my pie so as to ensure the greatest good for the greatest number of stakeholders. But how many people deserve a piece of the pie? Theoretically, I could break down the pie into thousands of crumbs and distribute one crumb per person. Since no measurable good would come from this, it cannot be what the utilitarian has in mind. So what is the smallest piece of pie that would constitute a good enough piece? How many pieces of that size can I produce? And who among the many claimants has “first dibs” on those pieces? Utilitarianism has no ready reply, which makes meting out this sort of justice difficult. However, this may not mean that utilitarianism is wrong. Opposed to libertarianism and utilitarianism, egalitarianism, claims that everyone with an interest in the pie has an equal right to a just serving. All else being equal, a just serving would be of equal size no matter who is to receive it. But who gets pieces if there are more deserving people than there are adequately sized pieces? A sworn professional’s direct interest in distributive justice is two-fold. First is to distribute his or her talents and services fairly. A textbook example finds the police officer having to choose between helping a wounded victim and chasing the assailant. Which is the more just distribution of the officer’s time and effort? To do what will most benefit him? To do what will result in the greatest good? To treat all parties equally? A second interest of sworn professionals in distributive justice is to enforce the community’s laws concerning distribution. For example, it is against the law to steal someone else’s property. Distributive justice requires that people be protected from theft of their property, that stolen property be recovered if possible, and that victims be compensated for the loss. To these ends sworn professionals promote distributive justice by making laws that protect property, being vigilant for violations of law, discouraging violations through the police presence, responding to complaints about violations, and adjudicating formal charges of property rights violations. Commutative justice is about formal and informal contracts. On one theory of commutative justice, “a deal’s a deal.” If two parties have agreed to a transaction, and each is able to fulfill its end of the bargain, then justice demands that each do so. On another theory of commutative justice, a deal may be invalid in light of other considerations.


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For sworn professionals, commutative justice rests primarily on the social contract that they have made with the community through the oath to the Constitution and the laws of the community. Under this contract, it would always be unjust for a sworn professional to act unconstitutionally. Thus, for example, the US Supreme Court declared unconstitutional a New York ordinance permitting wiretaps in an attorney’s office for 60 days (Berger v. New York, 1967). In this case, the part of the contract that required a New  York police officer to enforce that law was invalid, and the officer should have disobeyed it. The community must also fulfill its part of the contract, and it fails to do so when it impedes criminal justice professionals’ attempts to do their duty. This may happen, for example, when a close-knit community hides a fugitive from police officers seeking to arrest him. If someone acts distributively or commutatively unjust, what is the proper recourse? This is a matter of retributive justice. Suppose the law says that I must give 10 % of my apple pie to a food bank in order to help feed the poor, but on libertarian grounds, I refuse to obey the law. Do police have the right to force me to give up a piece of the pie? If I have eaten the pie, does the government have the right to force me to make another one? Or suppose someone with no legal or moral claim to my pie has stolen it from the windowsill where it was cooling. Does that person owe me another pie? The monetary equivalent of that pie? Should that person be jailed or have a hand amputated for the offense? Or suppose I agreed to make a pie for you, but failed to produce one by the deadline upon which you and I had agreed. You are out no money and your physical well-being is none the worse. Should the law intervene and force me to compensate you in some way? What one feels about retributive justice depends on what one feels is the proper purpose of punishment. In the USA we often speak as if the proper purpose were rehabilitation, although our penal system often works against rehabilitation and the public seems content just to have the offender off the streets. Other purposes that punishment might serve include preventing the offender from offending again, revenge, restitution, deterring others from committing a similar offense, or various combinations of these purposes. Since the Declaration of Independence emphasizes individual rights and the Constitution emphasizes the collective good—while preserving certain individual rights in the bargain—it is arguable that the Declaration favors libertarian justice while the Constitution favors utilitarian justice.


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In light of these distinctions concerning theories of law, rights, and justice, consider the following examples of questions aimed at Level 7 of constitutional literacy • Which of the following theories about law applies to the US Constitution? • Natural Law Theory: law is given to humans by a higher power, law and morality walk hand-in-hand, and this law includes natural rights. • Legal Realism: law is whatever the courts say it is, there is no necessary connection between law and morality, and this law does not confer inalienable rights. • Legal Positivism: law is whatever the legislature says it is, there is no necessary connection between law and morality, and the law does not confer inalienable rights. • Legal Predestinationism: law evolves inevitably toward democracy and free market economies, law and morality walk hand-in-hand, and the law confers inalienable rights. Legal positivism, as discussed above. • Which of the following theories about rights applies to the US Constitution? • All legal rights are conferred and may be removed either by the conferring authority or by that authority’s loss of power. • Some rights are inalienable and may be removed by legitimate legal authority. • All rights are inalienable and, thus, cannot be given away or taken away. • None of these All legal rights are conferred and may be removed either by the conferring authority or by that authority’s loss of power. • Which of the following theories about rights applies to the Constitution? • There are positive rights, which entail obligations on the part of others in order to exercise those rights. • There are negative rights, which require only that one be left alone in order to exercise those rights.


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• Both • Neither Both • Which of the following types of justice is reflected in the Constitution? • Distributive justice, which pertains to the just distribution of goods and services. • Commutative justice, which pertains to just contracts and fulfilment of contracts. • Retributive justice, which pertains to just punishment for violation of commutative or distributive justice. • All three All three. Level 8: Familiarity with the more arcane debates about, for example, the history and nature of constitutional interpretation. At this level one finds a great deal of disagreement, not because one or the other party is constitutionally illiterate, but because of philosophical or political differences. Thus, it is fair to call both Justice Scalia (2012) and Justice Breyer (2006) constitutional scholars, yet they frequently disagree on the meaning of key constitutional passages or of their application to a specific court case. Scalia believes that in applying the Constitution to a legal case, the justices should determine the original meaning of the constitutional provision and stay as faithful to that as possible. This view is one type of “originalism”; another type holds that justices should abide by the original intent of the Constitution’s framers. Breyer on the other hand believes that the Constitution is a living document whose primary purpose is to ensure the liberty of people in their own time. Because those times change, one’s interpretation of the Constitution must change correspondingly. In this same vein, it is interesting to note how dissenting opinions in Supreme Court decisions have often become the majority’s opinion in subsequent decisions (Urofsky 2015). This is a point in favor of the living constitutionalists such as Breyer, although this by no means settles the matter. At Level 8 one also finds debate about the quality of the Constitution itself. Thus, William Gladstone (1878) said that the Constitution is “The


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most wonderful work ever struck off at a given time by the brain and purpose of man,” while Thurgood Marshall said that the Constitution was “defective from the start, requiring several amendments, a civil war, and momentous social transformation to arrive at what we have today” (cited in Taylor 1987). Ben Franklin (1787) said that the Constitution is “Imperfect, but as close to perfection as human beings could achieve.” George Washington (1788) declared the Constitution “little short of a miracle.” Example questions could be derived from any of these theories about or assessments of the Constitution.

SUMMARY This chapter has explored the nature of constitutional literacy. It opened with an account of James T. Otis’s courtroom attack on writs of assistance and noted John Adam’s claim that this was the tipping point from general colonial loyalty to the crown to general colonial support for a revolution. We also noted the close connection between the hatred of writs of assistance and the demand for the 4th Amendment requiring that courts issue warrants only given probable cause. The point of this account for the purposes of the chapter was to give an example of the possibilities of constitutional literacy that extend beyond knowledge of the Constitution’s anatomy. Next, we considered several definitions of constitutional literacy. Our working definition is that constitutional literacy means knowledge of the Constitution sufficient to invoke it accurately. This invocation may be verbal or may be implied in certain public or civic acts, such as voting. An alternative definition regards constitutional literacy as the ability to study the Constitution. Other definitions include some that focus on knowledge of the Constitution’s anatomy and physiology, its ancestry and legacy, or the specific rights that the Constitution confers. Still other definitions focus on civic activity whose success depends on the agent’s constitutional literacy. Given the many possible definitions, we paused to consider what sort of definition we hoped for, recognizing that our working definition is stipulative, but agreeing that a more helpful and complete definition would be ostensive—one we derive by pointing to examples of what constitutional literacy is and, in a subsequent chapter, what it is not. One way to frame examples of constitutional literacy is to locate these examples within one or more of eight levels, in ascending order of quantitative complexity relative to the knowledge of the Constitution’s basic anatomy. We distinguished each


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level by a brief description and examples of what one might be expected to know at this level. Along the way, we added some information that might enhance the reader’s constitutional literacy. In the next chapter, we continue our development of an ostensive definition of constitutional literacy by considering what it is not, that is, by considering examples of constitutional illiteracy. The primary purpose of that chapter will be to demonstrate the lack of constitutional literacy and thus to offer one argument for this book.

REFERENCES Adams, John. 1818. Letter to William Tudor. Niles’ Weekly Register, March 25, 137–140. Original letter, March 29, 1817. Agel, Jerome, and Morton Greenberg. 1987. The U.S. constitution for everyone. New York: Penguin. Aristotle. Metaphysics. Trans. by G.  C. Armstrong. 1935. Cambridge: Harvard University Press. Aristotle. Nicomachean ethics. Translated by W. D. Ross. 1941. In The basic works of Aristotle, ed. Richard McKeon, 1105b20–1108b10. New  York: Random House. Berger v. New York, 388 U.S. 41 (1967). Berlin, Isaiah. 1969. Two concepts of liberty. In Four essays in liberty. Oxford: Oxford University Press. Breyer, Stephen. 2006. Active liberty: Interpreting our democratic constitution. New York: Alfred A. Knopf. Center for Civic Education. 2014. We the People program. Civiced.org. http:// www.civiced.org/wtp-the-program/curriculum. Accessed Jan 2016. Cogan, Neil. 2015. The complete Bill of Rights: The drafts, debates, sources, and origins, 2nd edn. New York: Oxford University Press. Constitutional. 2016. American Heritage Dictionary. https://www.ahdictionary. com/word/search.html?q=constitutional&submit.x=52&submit.y=16 . Accessed 22 Jan 2016. Dred Scott v. Sandford, 60 U.S. 393 (1857). Farris, Michael. 2011. Constitutional literacy [Website]. http://constitutionreclaimed.com/. Frank, Jerome. 1930. Legal realism. In Law and the modern mind, 46–52. New York: Brenatano’s. Franklin, Benjamin. 1787. On the constitution. Speech. Philadelphia: Constitutional Convention, September 17. http://avalon.law.yale.edu/18th_ century/debates_917.asp. Accessed 22 Jan 2016.


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Gladstone, William. 1878. Kin beyond sea. The North American Review, September–October: 185. Hart, Melissa. 2013. Foreword: Public constitutional literacy; a conversation. Denver University Law Review 90(4): 825–831. Hobbes, Thomas (1651). Leviathan. Holmes, Oliver Wendell. 1897. The path of law. Harvard Law Review 10: 457–468. Kelly, Debra. 2013. Women could vote before the 19th Amendment. KnowledgeNuts.com, December 11. http://knowledgenuts.com/2013/12/ 11/women-could-vote-before-the-19th-amendment/. Levinson, Sanford. 1992. The audience for constitutional meta-theory (or, why and to whom, do I write the things I do?). University of Colorado Law Review 63: 389–407. Levy, Leonard. 2001. Origins of the Bill of Rights. New Haven: Yale University Press. Literacy. 2016. American Heritage Dictionary, online. https://www.ahdictionary. com/word/search.html?q=literacy&submit.x=43&submit.y=11. Locke, John. 1690. Second treatise of civil government. Londras, Fiona de. 2012. Constitutional literacy: A democratic imperative. Human Rights in Ireland [Website], November 12. http://humanrights.ie/ constitution-of-ireland/constitutional-literacy-a-democratic-imperative/ #respond. Massaro, Toni. 1993. Constitutional literacy: A core curriculum for a multicultural nation. Durham: Duke University Press. Mill, John Stuart. 1859. On liberty. London: Parker & Son. Miranda v. Arizona, 384 U.S. 436 (1966). Orange. 2016. Merriam-Webster Dictionary, online. http://www.merriamwebster.com/dictionary/orange www.answers.com. Otis, James T. 1761. Against writs of assistance. Speech, February. Nhinet.net. http://www.nhinet.org/ccs/docs/writs.htm. Accessed 22 Jan 2016. Plessy v. Ferguson, 163 U.S. 537 (1896). R.A.V. v. St. Paul, 505 U.S. 377 (1992). Roe v. Wade, 410 U.S. 113 (1973). Scalia, Antonin, and Bryan Garner. 2012. Reading law: The interpretation of legal texts. St. Paul: West Publishing. Singer, Peter. 1976. Animal rights and human obligations. Englewood Cliffs: Prentice-Hall. Story, Joseph. 1833. Commentaries on the constitution of the United States. Vols. 1–4. Quote Accessed 22 Jan 2016. http://press-pubs.uchicago.edu/founders/documents/amendIIIs12.html.


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Strauss, Betsy. 2015. Constitutional literacy: What does it really mean? Familystyle schooling.com, September 26. http://familystyleschooling.com/2015/09/26/ constitutional-literacy-what-does-it-really-mean/. Taylor, Stuart. 1987. Marshall sounds critical note on bicentennial. New York Times May 7, B18. Thomas, Aquinas. 1920. The Summa theologica of Thomas Aquinas. Vol. 1. Translated by the Fathers of the Dominican Province. London: Burns Oates & Washbourne. Originally published c. 1250. Tushnet, Mark. 2012. Constitutional literacy outside the courts. Keynote address. 2012 Rothgerber Conference, November 29. https://www.youtube.com/ watch?v=HhvsQxqG3-A&list=PLwFq2GL-i5Ujh9_m9Z9H0OBeqJn6ff7AF &index=1. Urofsky, Melvin. 2015. Dissent and the Supreme Court: Its role in the court’s history and the nation’s constitutional dialogue. New York: Pantheon. Washington, George. 1788. Letter to Lafayette, February 7. http://founders. archives.gov/documents/Washington/04-06-02-0079. Accessed 22 Jan 2016.


CHAPTER 3

The Lack of Constitutional Literacy

INTRODUCTION: HELLER AND THE 2ND AMENDMENT One of the more oft-cited constitutional amendments in public conversation is the Second: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The apparent ambiguity of its precise meaning is at the heart of many a heated discussion, especially as reports of mass shootings, gun-related homicides, and accidental shootings in the USA appear in the news daily. Indeed, while possession and use of guns are at the heart of a debate over the scope and limits of the 2nd Amendment, note that it does not limit “arms” to guns—the Amendment could refer to any weapon whatsoever. For now, let us limit the subject to guns. In the debate over the scope and limits of this Amendment one extreme would include anyone who claims the 2nd Amendment gives an absolute right to bear arms. Anyone claiming this would be displaying some degree of constitutional illiteracy. From a constitutional point of view, no right is absolute. The Constitution itself, and all the rights it acknowledges or grants, can be abrogated if two-thirds of Congress and three-fourths of the states agree, resulting in an Amendment to that effect. Leaning toward this extreme are those who promote severely limited restrictions on gun ownership. There appears to be little objection, for example, to preventing people convicted of certain crimes from owning guns. Nor is there widespread objection to preventing young children or © The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4_3

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adults with certain mental disabilities from using or owning guns. People on this side of the debate generally call for gun ownership to be allowed unless the government can show cause for any restriction it imposes. One of the more famous examples of this position, typically associated with the National Rifle Association (NRA), is a speech that its then-president, actor Charlton Heston, gave at the 129th NRA convention in 2000: For the next six months, Al Gore [at that time Vice President and presidential candidate] is going to smear you as the enemy. He will slander you as gun-toting, knuckle-dragging, bloodthirsty maniacs who stand in the way of a safer America. Will you remain silent? I will not remain silent. If we are going to stop this, then it is vital to every law-abiding gun owner in America to register to vote and show up at the polls on Election Day. So, as we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words for everyone within the sound of my voice to hear and to heed, and especially for you, Mr. Gore: [holding a rifle aloft] ‘From my cold, dead hands!’ (cited in Dao 2000)

On the other extreme would be those who prohibit all guns, the 2nd Amendment notwithstanding. Anyone advocating at this extreme in the USA would, like his counterpart above, be exhibiting constitutional illiteracy—or disregard for the Constitution—since the 2nd Amendment clearly acknowledges some right to bear arms. Leaning toward this extreme are pacifists who may support use of guns for hunting, for example, but believe that the government should decisively protect people from gun violence by imposing severe legal limits on gun ownership and use (Atwood 2012). In between the two extremes come views exhibiting various levels of support for gun ownership and, especially for us, constitutional literacy. Merely taking one side or the other is insufficient evidence of one’s constitutional literacy, as even the most literate, such as the US Supreme Court justices, disagree on the scope and limits of the 2nd Amendment. This is evident from the majority and dissenting opinions in District of Columbia et al. v. Heller (2008). Dick Heller, a special policeman in the District of Columbia, sought to register a handgun that he planned to keep at home. The District declined his request. This was in keeping with the District’s strict gun laws that prohibited carrying unregistered guns and required lawful owners of handguns, when those guns were at home, to keep them unloaded and either dissembled or locked.


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Heller sued the District claiming that its law violated his 2nd Amendment right to have an unlicensed firearm in his home and to have that gun be functional. The first court to hear the case, a district court, dismissed Heller’s suit. Heller appealed to the D.C. circuit court, which found for Heller, agreeing with Heller’s premise that the DC law was too restrictive in light of the 2nd Amendment. The District appealed to the US Supreme Court, which heard the case and decided for Heller in a 5–4 decision. Writing for the majority, Justice Antonin Scalia claims that the Amendment’s prefatory clause, “A well regulated Militia, being necessary to the security of a free state,” does not limit the scope of the operative clause, “the right of the people to keep and bear arms shall not be infringed.” Thus, Scalia claims, there is a clear constitutional right for individuals to bear arms, at least to the extent that Heller wishes to exercise that right. In making this argument, Scalia cites court cases that he argues have drawn similar conclusions, state constitutions that support the majority’s interpretation, and scholarship on the issue from the ratification of the Constitution through the nineteenth century. Scalia also notes that some limits on possession and use of handguns are constitutional, but not the restrictions that Heller faced. For our purposes, the key point is the finding that, references to the militia notwithstanding, the 2nd Amendment grants individuals the right to bear arms, militia or not. In a dissenting opinion, Justice John Paul Stevens agrees that the 2nd Amendment may confer an individual right as well as a collective right, but he argues that a fact alone does not clarify the scope of the right. For example, the 2nd Amendment does not confer the right to use a gun to rob a bank. Calling on the precedent set in States v. Miller (1939), Stevens notes that the Court supported the prohibition of sawed-off shotguns and in that finding noted that the primary purpose for the 2nd Amendment was to protect the military use of guns by communities resisting government tyranny and that in the absence of such tyranny, legislatures had considerable authority to regulate civilian use of guns. Also, contrary to Scalia, Stevens argues that the prefatory clause of the 2nd Amendment limits the scope of the operative clause. That is, according to the 2nd Amendment, one has a right to bear arms in order to maintain a militia. In sum, When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its


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terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence.

Stevens retired from the Court in 2010. In 2014, Stevens (2014) proposed six Amendments to the Constitution, including adding five words to the 2nd Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed” (142; Stevens’ emphasis). So far there has been no official action on Stevens’ proposals. Justices Souter, Ginsberg, and Breyer, joined in Stevens’ dissent in Heller. All four also joined in Breyer’s dissent. Breyer offers two arguments against the majority. First, he agrees with Stevens that, in Breyer’s words, The Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

Second, for Breyer, The protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.

Basic logic sides with Scalia on this point. The argument of the 2nd Amendment—the only constitutional Amendment that contains its own argument—can be put as follows: if people have a right to a militia, then people have a right to bear arms. People have a right to a militia. Therefore, people have a right to bear arms. Let M=people have a right to a militia. Let B=people have a right to bear arms. The form of the argument is, if M, then B. M, therefore, B. This reflects the elementary valid argument form modus ponens, from Latin “the method of affirming by affirming.” Any argument of this form starts with a hypothetical sentence of the form, if p, then q. The first part


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of such a sentence—in this case, p—is called the antecedent, because it comes first. The second part, q, is the consequent. The second premise affirms the antecedent, p, and the conclusion affirms the consequent, q. An argument with this form is always valid, that is, if the premises are true, the conclusion must be true. While logic offers different methods of demonstrating the validity of modus ponens, a couple of examples should suffice here: (1) If Rex is a dog, then Rex is a mammal. Rex is a dog. Therefore, Rex is a mammal. (2) If it is Sunday, then the store is closed. It is Sunday. Therefore, the store is closed. In (1) it is true by definition that if Rex is a dog, Rex is a mammal. So if Rex is a dog, as the second premise asserts, then Rex must be a mammal, as the conclusion asserts. The first premise in (2) may or not be true, depending on the store and the local laws or customs. But if the first premise is true and, as the second premise asserts, it is Sunday, then the conclusion must be true—the store must be closed. In any argument of the form modus ponens, it is logically impossible for the premises to be true and the conclusion to be false at the same time. Just so with the 2nd Amendment. Its antecedent is “People have the right to a militia” and its consequent is “People have the right to bear arms.” Thus, (i) If people have a right to a militia, then people have right to bear arms. (ii) People have a right to a militia. (iii) Therefore, people have a right to bear arms. But note that this argument does not say that one has a right to bear arms, only if one has a right to a militia. To interpret this argument this way is to commit the fallacy of denying the antecedent. Consider our two examples: (1) and (2). Starting with “If Rex is a dog, then Rex is a mammal,” let the second premise now be “Rex is not a dog.” It’s tempting to conclude that Rex is not a mammal, but this is not necessarily true. Suppose Rex is a cat. Then it is true that If Rex is a dog, then Rex is a mammal; and it is true that Rex is not a dog; but is false to conclude that Rex is not a mammal. As a cat Rex is a mammal. For any argument where it is possible that the premises are true and the conclusion is false, that argument is invalid, and thus illogical. Similarly, start with “If it is Sunday, then the store is closed,” then let the second premise be, “It is not Sunday.” Again it may be tempting to conclude that the store is not closed. But the store could closed for many reasons other than the day of the week. Perhaps the proprietor is on


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vacation or the store is also closed on Tuesdays. In form, here is the difference between the valid modus ponens and the invalid fallacy of denying the antecedent. Modus Ponens

Fallacy of Denying the Antecedent

If P, then Q P Therefore, Q

If P, then Q Not P Therefore, not Q

Note again that in the valid form, the second premise asserts the antecedent of the first (P); in the fallacy, the second premise denies the antecedent (P), which tells us nothing about the consequent. Back to the 2nd Amendment. Some proponents of gun control argue that the 2nd Amendment grants the right to bear arms only to the extent necessary to exercise the right to a militia. Thus, while a community may have the right to an arsenal as a protective measure against government tyranny, for example, the Amendment does not confer on individuals the right to bear arms. This appears to be the view of the minority in Heller. But this view commits the fallacy of denying the antecedent. The 2nd Amendment does not say “Only for the purposes of a militia do people have the right to bear arms” just as example (1) does not say, “Only if Rex is a dog is Rex a mammal” and example (2) does not say “Only if it is Sunday is the store closed.” Many types of animals may be mammals, and there may be many reasons why the store is closed. So too there may be many reasons why people have the right to bear arms, not just to maintain a militia. Note that the Constitution does not acknowledge any other right as the conclusion of an argument: in all other cases the Constitution simply asserts the right or promises that the government will not infringe the right. Perhaps this lends extra weight to the prefatory clause of the 2nd Amendment. But it also reminds us that the Constitution is its own authority and expresses no need for further argument to confer or deny a right. In Heller, the Court split along conservative (the majority in this case) and liberal lines. But these labels do not settle the matter. In 1991, former Chief Justice Warren Burger (cited in Newman 2013; also see Kopel 1999), a conservative, referred to the argument of the National Rifle Association (NRA) that the 2nd Amendment grants individuals the right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American people by any special interest group that I have ever seen in my lifetime.”


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While Heller limits its decision to the use of a gun for self-defense in one’s home, the NRA claims a broader decision, including the right to own and use assault weapons. For law professor Burton Newman (2013), the public’s failure to call out the NRA on its exaggeration, and hence, “propaganda,” suggests the ordinary citizens’ lack of constitutional understanding—in our words, constitutional literacy. Burton wonders, How can the American people be educated to understand the true meaning of the Second Amendment consistent with the Supreme Court’s interpretation of that Amendment? Such an education process could lead to sweeping reform of state and federal regulation of firearms. But how is the mindset of the American people to be changed? The same way our mindset about drunk driving and smoking changed over time. … [I]t is the education of the citizenry and the education of our lawmakers that is necessary in order for the calculated messaging of the NRA to be known for what it is: Lies, myths and fictions that have harmed and killed our citizens and will continue to do so until an enlightened view of the very limited scope of Second Amendment rights is known, understood and acted upon.

Newman thus gives us an argument for this chapter, in which we consider the evidence for lack of constitutional literacy, or put another way, evidence of constitutional illiteracy.

PERVASIVE CONSTITUTIONAL ILLITERACY: EVIDENCE Our working definition of constitutional literacy says that it is knowledge of the Constitution sufficient to invoke it accurately. This invocation may be verbal or implicit in one’s actions. The amount of constitutional literacy necessary to the task will vary according to the complexity of the task, starting with the anatomy of the Constitution; its physiology, evident primarily in constitutional law; its ancestry; and its legacy. In looking for evidence of constitutional literacy, we will limit ourselves to situations where one would expect literacy. Here it is useful to distinguish between lack of knowledge and ignorance. All of us lack knowledge in many areas that are not important to us. I don’t know how to operate a tank; I don’t know how to raise crops on the Pampas; and I don’t know how to speak Ho-chunk. It might be fun to know these, but it would not help me fulfill my responsibilities or exercise my rights as a priest, a professor, a father, a grandfather, a husband, a friend, or a citizen. On the other hand, if I claimed to know them when I don’t I would be showing ignorance. In short, ignorance exists where one


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claims to know something that one does not know. Lacking knowledge about something and admitting that lack are not ignorance. This chapter’s focus is on claims to know the Constitution by people who do not know it to the extent they claim. This includes people who promise to protect the Constitution, but don’t know it sufficiently to assess how well they are keeping their promise. It includes people who have not sworn an oath to the Constitution but who go about their civic lives acting as if they knew the Constitution when they don’t. And it includes people, both sworn and non-sworn, who cite the Constitution incorrectly. Evidence for constitutional illiteracy could fill a book. This chapter seeks to include enough to show that such illiteracy exists to an extent requiring some remedy to enhance professional public life and private civic life. Evidence of constitutional illiteracy comes from at least four sources: anecdote, including the examples that introduce Chap. 1 of this book; studies and writings on the subject; lack of adequate coverage of the Constitution in basic police training; and a test I have given students in my course, Applied Ethics, the Constitution, and Leadership. Anecdote Recall the examples from Chap. 1. Sworn government officials who have confused the Declaration with the Constitution include congressional leaders such as John Boehner and Nancy Pelosi; governors, such as Sarah Palin; and judges, such as Arenda Wright Allen. Secretary of State, Alexander Haig, got the presidential succession wrong. This is a more “sophisticated mistake,” perhaps, but not an acceptable one for a sworn official who is high up in that succession. Chap. 1 also cites examples of non-sworn opinion leaders, including Jerry Falwell and Rush Limbaugh, confusing the Declaration with the Constitution. To these examples we may add Secretary of State Condoleezza Rice’s claim that Jefferson wrote the Constitution: “My ancestors in Mr. Jefferson’s Constitution were three-fifths of a man” (cited in Boaz 2006). US Senator Dick Durbin (cited in Milbank 2006) made the same mistake: There have been only seven acts of flag desecration annually in America in the last six years, so to argue that we have this growing trend toward desecration and burning our flag defies the facts. In fact, it rarely, if ever, happens. And so why are we about to change the handiwork and fine contribution to America of Thomas Jefferson?


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During the Constitutional Convention, Jefferson was in Paris representing America. More recently, Michael Scherer (2015), Time magazine’s Washington Bureau Chief, referring to the Constitution, wrote, James Madison warned his nascent nation of ‘the superior force of an interested and overbearing majority.’ To remedy this, America’s founders forged a union with safeguards: due process of law, inalienable individual rights and a byzantine electoral system that intentionally slowed popular fury and change. (106; my emphasis)

While the Declaration of Independence presumes the existence of inalienable rights, these were not part of what the founders “forged” when they developed the US government. To repeat, the Constitution makes no mention of inalienable rights and the rights that the Constitution recognizes are alienable. Research and the Popular Press If America’s sworn officials and opinion leaders incorrectly invoke the Constitution, and the majority of witnesses apparently fail to catch the mistake, then we have evidence of a pervasive constitutional literacy on these facts alone. This evidence also appears in research and in the popular press. For example, journalist Husna Haq (2015) reports that in 2011 a survey by The University of Pennsylvania’s Annenberg Public Policy Center “found that just 15 percent of Americans could identify the chief justice of the US Supreme Court as John Roberts, only 13 percent knew the U.S. Constitution was signed in 1787, and only 38 percent were able to name all three branches of government.” Law professor Ilya Somin (2004; see also 1998) has much to say about voter ignorance, offering empirical evidence that implies pervasive constitutional illiteracy. The most important point established in some five decades of political knowledge research is that the majority of American citizens lack even basic political knowledge. To borrow the terminology of political scientist Stephen Bennett, almost one-third of American adults are political “know nothings” who possess little or no useful knowledge of politics. For present purposes, it is important to stress that the majority of citizens lack basic “rules of the game” knowledge, information about which public officials


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and agencies are responsible for what issues. For example, the majority of American adults do not know the respective functions of the three branches of government, who has the power to declare war, or what institution controls monetary policy. A related problem is that citizens are often ignorant of which political party controls what institutions of government. A survey taken immediately after the November 2002 congressional elections found that only about 32 % of respondents knew that the Republicans had held control of the House of Representatives prior to the election. This result is consistent with research showing widespread ignorance of congressional party control in previous elections. (1304–1305)

In 2012, The University of Boulder Colorado Law School hosted the Twentieth Annual Ira C. Rothgerber Jr. Conference, whose theme was “Public Constitutional Literacy.” In 2013, the Denver University Law Review dedicated one of its quarterly issues to papers from the Rothgerber conference (Hart 2013). Together, these papers offer strong evidence for the lack of constitutional literacy, especially among the citizenry; examine efforts to improve it; and offer suggestions for further improvement. Law professor Melissa Hart (2013) describes law professor Mark Tushnet’s keynote address, as pointing to “myriad evidence demonstrating a widespread lack of public knowledge about the Constitution and the legal system” (826). Several of the papers focus on the American University Washington College of Law’s Marshall-Brennan Constitutional Literacy Project, which Chap. 2 mentions. This project has law school students teaching civics and the Constitution in the public high schools. The project has had a positive effect on the law school students, leading more of them than usual to practice public interest law (Waters and Addington 2013). The project has also had a positive effect on the high school students, leading them to greater civic engagement than usual (Ahranjani et al. 2013; Raskin 2013). At the same time, these programs have struggled with sustainability (McNabb 2013). These papers demonstrate a need to improve constitutional literacy and address an effort to do so, thus providing both evidence for lack of constitutional literacy and hope for improvement. One paper that stands out in the collection of the Rothgerber papers addresses the problem of constitutional illiteracy among jurors (Royal and Hoffman 2013). The authors also propose a quick tutorial on the Constitution for every jury before the trial begins. This is an interesting proposal to which we will return when considering ways to improve constitutional literacy (Chap. 6). Here we may note further proof of the poor state of public constitutional literacy at present.


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Police Basic Training The Annenberg and Rothgerber examples, along with Somin’s articles demonstrate pervasive constitutional illiteracy among the citizenry who are generally non-sworn but frequent participants in public life. Our opening examples show sworn officials exhibiting constitutional illiteracy. Further evidence of lack of constitutional literacy among sworn officials emerges from an Internet survey of police training programs across the USA. No academy lists courses on the Constitution in any training other than basic training. The available evidence we seek, then, comes from public statements about basic training. This evidence does not prove the illiteracy of individual police officers, since they may have acquired that literacy outside of their academy training. But the evidence does suggest a lack of adequate commitment to helping the recruits become constitutionally literate enough to take the oath to the Constitution with sufficient knowledge to know what they are swearing to. To be fair, a closer look at specific course syllabi, for example, might reveal more of a commitment to constitutional literacy than the official public statements suggest. But since these public statements are the first stop for anyone seeking knowledge about the basic training, one can assume that these statements are adequate demonstrations of the academies’ commitment—or lack of commitment—to constitutional literacy I was able to find at least one web site for each state in the USA. The address for each web site appears in the reference list at the end of this chapter, under the entry “Police Basic Training Websites.” This list also includes the two-letter postal codes for each state, codes that appear in the following summary. Thirty-five sites come from state wide agencies or commissions, including • A Peace Officer Standards and Training Commission or state training commission under another title (AL, CA, CT, ID, MD, MS, NV, NJ, PA, TN) • A state department of law enforcement or department of criminal investigation (AR, FL, IL, IN, IA, KS, MA, NM, OK, SD, WY) • A state department of justice or department of criminal justice (KY, ME, MT, NY, NC, VT, VA, WA) • A state department of public safety (GA, NH, OR, RI) • A state code (DE) • A state police academy (SC)


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Two sites come from regional agencies: Honolulu PD (HI) and St. Louis County PD (MO). The remaining 13 sites come from colleges or universities with state-approved police basic training programs (AK, AZ, CO, LA, MI, MN, NE, ND, OH, TX, UT, WV, WI). For each site, I looked, where possible, for the length of the training; courses or units with “Constitution” in the title; course or unit descriptions that include a reference to the Constitution, even though the course or unit title does not; and the percentage of the program that thus appears to cover the Constitution. Length Thirty-eight states list their basic training requirements in term of hours. Seven states (AR, DE, HI, ID, NJ, SC, UT) list their requirements in terms of weeks. Five states (AK, AZ, CO, MN, and ND) list their requirements in terms of credits. For the purposes of this chapter, let us assume that a credit is 15 hours of class time and 30 hours of homework, for a total of 45 hours per credit: this is the federal standard. Also for the purposes of this argument, let us assume a week is equivalent to 40 hours. We then get the following results (Table 3.1). The range of hours is 360 (LA) to 1813 (MA). South Dakota is an outlier with a 60 credit program that on our formula translates to 2700 hours. Table 3.1 Hours of police basic training by state (p. 54) State

Hours

State

Hours

State

Hours

State

Hours

State

Hours

AL

520

HI

MA

1813

NM

657

SD

520

AK

720 (16 cr) 1350 (30 cr) 520 (13 wk) 664 1350 (30 cr) 871 880 22 wk 770 408

ID

MI

740

NY

649

TN

400

IL

880 (22 wk) 1215 (27 cr) 480

MN

NC

620

TX

643

IN

600

MS

1350 (30 cr) 400

ND

UT

IA KS

388 560

MO MT

600 480

OH OK

2700 (60 cr) 588 576

VT VA

1280 (32 wk) 817 810

KY LA

888 360

NE NV

607 679

OR PA

640 750

WA WV

720 1200

ME MD

720 1040

NH NJ

1280 880 (22 wk)

RI SC

870 480 (12 wk)

WI WY

518 519

AZ AR CA CO CT DE FL GA


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In calculating the mean and median, I have omitted South Dakota. The mean number of hours is 760. The median number of hours is 664. “Constitution” in the Course or Unit Title Ten states require a course or unit with “Constitution” in the title, including CT, IN, KS, KY, MD, MN, MO, NV, NC, and UT. North Dakota lists a course on the Constitution as an elective. • • • • •

Constitution: ND (elective); UT Constitutional Issues: KY Constitutional Issues in Criminal Processes: MN Constitutional Law: CT, KS, MD, MO, NV, NC Constitutional Provisions in History: IN

“Constitution” in the Course or Unit Description The sites of 15 states include “Constitution” in a course or unit description (other than those with “Constitution” in the unit or course title): AL, CA, CO, FL, ID, ME, NJ, NM, NY, PA, TN, TX (“Bill of Rights”), WA, WV, WY. The sites of 24 states, therefore, do not refer to the Constitution in the titles or descriptions of their units or courses. Twenty of these states list courses in which one may assume that the Constitution is a topic: • Criminal Justice (title): WI • Criminal Law (description): AK, AR, GA, HI, IL; (crim law of arrests): IA, NE, OK, RI, SC, VT • Criminal Procedure (description): DE, MT, NH, • Evidence, Arrest, Search & Seizure (title): MS • Law & Legal Matters (description): AZ • Legal Aspects (title): LA, SD, VA The sites of four states, therefore, offer no indication of their coverage of the Constitution: MA, MI (password protected), OH, OR. Percentage Concerning the percentage of each basic training program that it devotes to the Constitution, most sites express this in hours, some express it in credits, and some express it in weeks. Translating credits and weeks into hours, as we did above, the foregoing information yields the following percentage (Table 3.2):


GA

FL

DE

CT

CO

CA

AR

AZ

8/770 1 % 34/408 8 %

6/520 1 % 22/720 3 % 50/1350 4 % 36/520 7 % 46/664 7 % 51/1350 3 % 4/871 .4 % 79/880 9 %

AL

AK

Hours

MD

ME

LA

KY

KS

IA

IN

IL

ID

HI

State

22/720 3 % 62/1040 6 %

79/880 9 % 12/1215 1 % 19/480 4 % 3/600 .5 % 18/388 5 % 21/560 4 % 135/888 15 % 22/360 6 %

Hours

NJ

NH

NV

NE

MT

MO

MS

MN

MI

MA

State

180/1280 14 % 3/880 .6 %

1813 ? 740 ? 135/1350 10 % 13/400 3 % 41/600 7 % 62/480 13 % 67/607 11 % 14/679 2 %

Hours

SC

RI

PA

OR

OK

OH

ND

NC

NY

NM

State

Table 3.2 Percentage of police basic training spent on the constitution (p. 55)

State 1/657 .1 % 2/649 .3 % 28/620 5 % 0/2700 0 % 588 ? 35/576 6 % 640 ? 3/750 .4 % 6 % 50/870 6 % 32/480 9 %)

Hours

WY

WI

WV

WA

VA

VT

UT

TX

TN

SD

State

45/518 9 % 5/519 10 %

73/520 14 % 21/400 5 % 8/643 1 % 13/1280 1 % 60/817 13 % 105/810 13 % 6/720 .8 % 135/1200 11 %

Hours

56 C. DREISBACH


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Concerning the 25 states (excluding VA) whose basic training sites refer to the Constitution specifically, the range of total hours of training is 400–1710; the mean number of total hours is 496; and the median number of hours is 679. For these same states, the range of hours spent on the Constitution is 1–135; the mean is 46 hours and the median is 13 hours. Regarding the percentage of time spent on the Constitution, the range is .1 %–15 %; the mean is 4 %; and the median is 2 %. Concerning the 20 states whose sites identify topics of possible constitutional relevance, but whose sites do not refer to the Constitution specifically, the range of total hours of training is 360–1280; the mean is 565 hours; and the median is 520 hours. For these same states, the range of hours spent on constitutionally relevant topics is 13–180; the mean is 54 hours; and the median is 48 hours. Regarding percentage of time spent on the constitutionally relevant topics, the range is 3 %–14 %; the mean is 9 %; and the median is 9 %. The average (mean) number of hours spent on the Constitution is not appreciably different between the 25 states who specify constitutional courses or topics (46  hours) and the 20 states that do not (54  hours); although the mean percentage is appreciably different: 4 % for the 25 states and 9 % for the 20 states. This is likely due in part to the fact that courses and units identified among the 20 states that have elements relevant to the Constitution, such as criminal law and criminal procedure, for example, include other elements not immediately relevant to the Constitution, such as state codes and procedures. If we combine the two sets of states, we find that the range of total hours spent on basic training is 360–1710; the mean is 527; and the median is 649. The range of hours spent on the Constitution or relevant topics is 1–180; the mean is 50 hours; and the median is 28 hours. The percentage range time spent on the Constitution or relevant topics is .1–15 %; the mean is 6 %; and the median is 6 %. In the final analysis, the figure that interests us most is the percentage of time that police basic training dedicates to the Constitution. The mean range is between 4 and 9 %, inclusive, with 6 % being the mean if we combine the 45 states that we have identified as referring to the Constitution either explicitly or by implication. This invites the question whether this is enough time to prepare the graduates of the academy to take the oath to the Constitution with sufficient literacy to understand what they are swearing an oath to.


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To be sure, the quantitative question does not settle the qualitative question: one 3 credit course may be more effective than another. Also, as we have noted, there may be constitutional elements to the training that do not appear expressly or by implication in the web sites’ descriptions of the training. Moreover, the recruits require a lot of other training if they are to be safe and successful on duty—training in the use of firearms, in arrest procedures, and in human relations. Still, 6 % is too little, given how central the oath is to the recruits’ professional identity and given how rich the material on the Constitution is, when we consider its anatomy, its physiology, its ancestry, and its legacy. That this time spent on the Constitution is insufficient is demonstrated further by the results of a test that 90 of my students—a vast majority of whom are experienced police officers—have taken. This is our next bit of evidence for the argument that constitutional illiteracy prevails. A Test Some evidence for the lack of constitutional literacy comes from a test that I devised and have administered over several years under various conditions. These conditions included the organization of the test and number of questions; the people who took it; and the directions I gave them for taking it. Working with a pool of 275 questions, I organized the questions first according to the eight levels that Chap. 2 discusses toward recognizing degrees of constitutional literacy. Level 1: The ability to distinguish the Constitution from other documents, most notably, the Declaration of Independence. Level 2: Knowledge of the basic history and basic anatomy of the Constitution. Level 3: Knowledge of certain significant details from the Articles and the Amendments. Level 4: Knowledge of most details of each Article and Amendment and the history surrounding its creation and ratification. Level 5: Familiarity with the more important arguments for the various elements of the Constitution. Level 6: Familiarity with the more famous court cases. Level 7: Familiarity with key disagreements about the nature of law, rights, and justice, and which theories about each are reflected in the Constitution as opposed, for example, to the Declaration.


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Level 8: Familiarity with the more arcane debates about, for example, the history and nature of constitutional interpretation. Next, I re-organized the questions under four major headings: internal themes, internal history, external themes, and external history. “Internal” refers to the Constitution itself; “external” to events and theories relevant to the Constitution, but not stemming from it immediately or directly. I eliminated four questions, leaving 271. I also identified the questions as easy, medium, or difficult based on my expectations and experiences of students in my Constitution class over the past 15 years. In outline, the organizational structure looks like this: CATEGORY I: Internal Themes (a) Distinguishing the Constitution from Other Texts: Questions 1. Easy: Questions 1–5 2. Medium: Questions 6–9 3. Difficult: Questions 10–13 (b) Requiring Reading the Constitution Only 1. Easy: Questions 14–48 2. Medium: Questions 49–59 (c) Requiring Extra Thought beyond a Reading of the Constitution, such as Interpretation or Research 1. Medium: Questions 60–105 2. Difficult: Questions 106–132 CATEGORY II: Internal History (a) Pre-Ratification 1. Easy: Questions 133–142 2. Medium: Questions: 143–146 3. Difficult: Questions: 147–152 (b) Post-Ratification 1. Medium: Questions 153–162 2. Difficult: Questions 163–171


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CATEGORY III: External Themes (a) Directly Relevant to the Constitution 1. Medium: Questions 172–180 2. Difficult: Questions 181–211 (b) Indirectly Relevant to the Constitution 1. Medium: Questions 212–215 2. Difficult: Questions 216–236 CATEGORY IV: External History (a) Pre-Ratification 1. Easy: Question 237 2. Medium: Questions 238–243 3. Difficult: Questions 244–249 (b) Post-Ratification 1. Directly Relevant to the Constitution (a) Medium: Questions 250–255 (c) Indirectly Relevant to the Constitution 1. Medium: Questions 256–261 2. Difficult: Questions 262–271 In general, “easy” applies to questions one should be able to answer after reading the Constitution for content, rather than comprehension. “Easy” also applies to questions that are arguably a matter of conventional wisdom or common sense. “Medium” applies to questions requiring a more studied reading of the Constitution, with attention to comprehension of its details. “Medium” also applies to theoretical and historical details that require attention, if not study, beyond a cursory reading of the Constitution or awareness of conventional wisdom relevant to the Constitution. “Difficult” applies to questions requiring familiarity with interpretations of the Constitution, definition of its more arcane terms, and scholarly understanding of history and theories relevant to the Constitution. In the absence of hard data the distinctions among easy, medium, and


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difficult questions rested on my experience with students, my scholarship, and my subsequent expectations of the test takers’ success in answering the questions. The more I administer the test, the more data I acquire to support my expectations or to lead to a reassessment of a question’s difficulty or diagnostic value. As my colleague and constitutional mentor Lawrence Coshnear, Esq. puts it, in general, “easy” refers to the basic anatomy of the Constitution, while “medium” and “difficult” refer to its physiology. In addition, this physiology includes not only interpretation of and theoretical debate about the Constitution itself, especially as reflected in Supreme Court decisions, but also the historical and political ancestry and legacy of the Constitution. Chapter 5 discusses this organization in more detail, finding the structure useful in assessing constitutional literacy. Most of the people who have taken the test have been sworn officials, usually law enforcement professionals. Most of them took it at the beginning of my course, Applied Ethics, the Constitution, and Leadership, an upper-level college course that is a requirement for the Bachelor of Science in Organizational Leadership in Johns Hopkins University’s Division of Public Safety Leadership. With rare exceptions, the non-sworn students in the program also work in public safety. I also asked for volunteers from outside the course, including friends, colleagues, and participants in workshops I have led in which the Constitution was one of the topics. For the purposes of this book, I draw on information from five cohorts, totaling 90 students, all of whom took the test at the beginning of the course in the semester they took it. Three facts justify limiting the data pool to these cohorts. First, if anybody should be expected to display constitutional literacy, it should be people who have entered their profession by taking an oath to the Constitution or people who, though non-sworn, work in public safety— a public governed by the Constitution. Second, I was able to direct and monitor these students in ways I could not direct volunteers. Also, this was the third course in which I had these students, so I knew their general academic abilities quite well. Third, for the purposes of this chapter, the set of 90 tests provides manageable and sufficient data to indicate the lack of constitutional literacy. Each of these cohorts took the test at the beginning of the course. In some cases, I gave the students a time limit—2 hours—asking them to answer as quickly as they were able. In other cases, I imposed no time limit, asking them to hand in their exams when they were finished. No one took longer than 2 hours to complete the exam, whether there was


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a time limit or not. Many chose to stop answering the questions before they reached the end of the exam. In some cases students wrote a note on the exam explaining that they had run out of time. I have not looked into why some took so much longer than others to answer the questions. In all cases, the results point to lack of constitutional literacy, which justifies this book’s concern. There are at least two ways to look at the data from these exams: by identifying and comparing the scores of the test takers and by identifying the percentage of correct responses to each question. Let’s consider each. Individual Scores The cohorts combined included 75 sworn, 7 non-sworn, and 8 who did not state whether they were sworn or non-sworn. The mean number of attempted answers was 219 out of 271. The median number was 260. The range of attempts was 10–271. If one scores only by the number of attempted answers, the high score was 93 %—that is, one student got 93 % of the questions correct of the questions he or she attempted to answer. This student attempted to answer 56 questions and got 52 of them correct. If this student’s grade includes all of the questions missed, then the score is only 19 % (52/271). The low score, if one considers only attempted answers, was 16 %, but this student attempted to answer all 271 questions and got 43 correct. The mean score was 49 %; and the median score was 48 %. On a straight percentage scale—where A = 90 to 100 %; B = 80 to 89 %; C = 70 to 79 %; D = 60 to 69 %; F = 0 to 59 %—one student gets an A; three get Bs; five get Cs; nine get Ds; 72 fail. On a standard Bell Curve with 90 test takers, a high score of 93 and a low score of 16: one gets an A (range: 91.46–93); three get Bs (range: 80.68–91.46); 76 get Cs (wide range: 28.32–80.68); nine get Ds (range: 17.54–28.32), and one gets an F (range: 16–17.54). The C range is too wide to indicate who is constitutionally literate and who is not. Matters get worse when one considers that with one exception (a student who scored 75 % having answered 168 questions), all of the scores from 73 % and higher were for students who responded to a small number of the questions: • • • •

73 % score; 67 questions; 76 % score; 67 questions; 77 % score; 52 questions; 84 % score; 50 questions;


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• 88 % score; 50 questions; • 88 % score; 57 questions; • 93 % score; 53 questions Further, since no student who completed the exam took more than 2  hours, and the shortest time limit I imposed was 2  hours, I prefer to count the scores earned without adjusting for a limited number of attempted answers. That is, I prefer to score each student’s submission by dividing the total number of questions (271) into the correct number of answers, counting skipped questions as incorrect. In this case, the high score was 68 % (184/271), the low score was 2 % (5/271), the mean score was 36 % (98/271), and the median score was 37 % (100/271). On a straight percentage scale, four students get Ds; 86 students fail. On a standard Bell Curve, with 89 test takers, a high score of 66 % and a low score of 13 % (throwing out the 2 %): three students get an A (range: 64.94 to 66); one students gets a B (range: 57.52 to 64.94); 63 students get a C (range: 28.32 to 80.68); 18 students get a D (range: 14.06 to 21.48); and one student fails (range: 13 to 14.06), along with the student who scored 2  %. As above, the C range is far too broad to distinguish meaningfully those with an adequate degree of constitutional literacy from those with an inadequate degree. As all the test takers in these five cohorts were either sworn or nonsworn but in public safety fields, one would hope for a higher degree of constitutional literacy than the test scores indicate. Correct Answers per Question A second way to consider the evidence of the scores is to look at statistics for the number of correct answers to the questions. For the purposes of this summary, I collected statistics from each of four categories of questions and then reconfigured those statistics to reflect the whole exam. Category I—Internal Themes—includes 132 questions. The average (mean) percentage of questions answered was 78 (103/132). The highest percentage of correct responses for any one question, whether “easy,” “medium,” or “difficult,” was 94: T/F. The Constitution promotes a two-party political system.The answer is “false.” Fifty-four students (out of 90) attempted to answer this question. Fifty-one students answered it correctly. This question is of medium difficulty. I was surprised at the (relatively) high percentage of students who answered this correctly, as the two-party system today seems always to have been part of American politics, albeit it under different party titles.


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The lowest percentage of correct responses for any question, regardless of the level of difficulty, was 11: T/F. The 4th Amendment defines “unreasonable searches and seizures.”The answer is “false.” Seventy-one students attempted to answer this question. Eighteen answered it correctly. This question is of medium difficulty. I was surprised at how few answered this question correctly. Anecdotally it appears that people know well the 4th Amendment’s reference to “unreasonable searches and seizures,” and either misunderstood the question to ask simply whether this is a topic of the 4th Amendment or incorrectly believed that the provision includes a definition. The mean percentage of correct responses for any one question in Category I, regardless of the level of difficulty, was 43 and the median was 39. Of the “easy” questions, the highest percentage of correct responses for any one question was 87. Which amendment guarantees the right to bear arms? (a) (b) (c) (d)

2 3 4 7

The correct answer is a: Amendment 2. Ninety (out of 90) attempted to answer this question. Seventy-eight got it right. That so many scored well on this question adds relevance to the opening subject of this chapter: Heller and the 2nd Amendment. Of the “easy” questions the lowest percentage of correct responses for any one question was 24: Which Amendment prohibits states from denying equal protection or due process of law? (a) (b) (c) (d)

5 9 13 14

The correct answer is d: Amendment 14. Eighty-nine (out of 90) attempted to answer this question. Thirty answered it correctly. Of the “difficult” questions the highest percentage of correct responses for any one question was 83:


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T/F. “Cruel and unusual punishment” is defined by “evolving standards of decency.”The answer is “true” (Trop v. Dulles 1958). Fifty-eight (out of 90) students attempted to answer this question. Forty-eight answered it correctly. Of the “difficult,” questions, the lowest percentage of correct responses for any one question was 16: As the Government of the United States of America is not, in any sense, founded on the Christian religion…no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between… two countries. (a) (b) (c) (d)

Treaty of Paris Treaty with the Bey of Tripoli Articles of Confederation Constitution of the United States

The answer is b: Treaty with the Bey of Tripoli (art. 9). Eighty-nine (out of 90) students attempted to answer this question. Fourteen answered it correctly. On the other hand, only 15 respondents (out of 89), mistakenly thought that this passage was from the Constitution. Had the point of this exercise been only to decide whether the excerpt is from the Constitution, 83 % of the respondents would have answered correctly. The foregoing responses are summed up in Table 3.3. Category II—Internal History—includes 39 questions. The average (mean) percentage of questions answered was 60. The highest percentage of correct responses for any one question was 87: T/F.  The immediate precursor to the Constitutional Convention was a convention in Annapolis, 1786, whose express purpose was to discuss trade problems with the Articles of Confederation.The answer is “true.” Sixty-nine (out of 90) students attempted to answer this question. Sixty answered it correctly. I consider this a difficult question, so I was surprised that so many answered this correctly relative to the correct answers to other questions. Table 3.3 Highest and lowest correct responses to individual questions in category I—internal themes (p. 65) All levels of difficulty

Easy

High % 94

High 87

Low % 11

Low 24

Medium difficulty

Difficult

High 94

High 83

Low 11

Mean % (all) Low 16

43

Median % (all)

39


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The lowest percentage of correct responses for any one question was 12: Which one of the Constitutional delegates pronounced the Constitution “nothing short of a miracle”? (a) (b) (c) (d)

John Adams John Marshall George Washington Ben Franklin

The answer is c: George Washington (see Chap. 2). Forty-two (out of 90) students attempted to answer this question. Five answered it correctly. Note that 34 of the 42 respondents answered a: John Adams. I consider this question to be of medium difficulty. The mean percentage of correct responses for any one question, regardless of difficulty was 49 and the median was 49 Of the “easy,” questions, the highest percentage of correct responses for any one question was 86: T/F. Rhode Island did not send a delegate to the Constitutional Convention.The answer is “true.” Sixty-nine (out of 90) students attempted to answer this question. Fifty-nine answered it correctly. Of the “easy” questions, the lowest percentage of correct responses for any one question was 24: How many delegates signed the Constitution? (a) (b) (c) (d)

13 26 39 55

The answer is c: 39. Seventy (out of 90) students attempted to answer this question. Seventeen answered it correctly. Of the “medium” questions the highest percentage of correct responses for any one question was 76: T/F. The 12th Amendment was prompted by the development of political parties.The answer is “true.” Fifty-five (out of 90) students attempted to answer this question. Forty-two answered it correctly. Of the “difficult” questions the lowest percentage of correct responses for any one question was 16:


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Which Amendment was a rebuke of the Stamp Act of 1765? (a) 6th Amendment, which allows “an impartial jury of the State and district where in the crime shall have been committed…” (b) 8th Amendment, which prohibits excessive bail and excessive fines. (c) 4th Amendment, which protects “persons, houses, papers, and effects, against unreasonable searches and seizures…” (d) 1st Amendment, which guarantees “the right of the people peaceably to assemble” The answer is a. The Stamp Act of 1765 allowed juryless trials and permitted prosecutors to take colonists back to England for trial. Fifty (out of 90) students attempted to answer this question. Eight answered it correctly. The foregoing responses are summed up in Table 3.4. Category III—External Themes—includes 65 questions. The average percentage of questions answered was 49 (32/65). The highest percentage of correct responses for any one question was 93: T/F. The 14th Amendment’s equal protection clause guarantees equal treatment by the government, but not necessarily equal opportunity.The answer is “true.” Forty-four (out of 90) students attempted to answer this question. Forty-one got it right. This question is of medium difficulty. The lowest percentage of correct responses for any one question was 7: On which of the following do Hobbes and Locke differ? (a) (b) (c) (d)

What constitutes a state of nature? The existence of natural law. The existence of natural rights. The need for a government available 24/7.

The correct answer is d. Thomas Hobbes (1651) believed that government must be eternally vigilant to keep society’s subjects from hurting Table 3.4 Highest and lowest correct responses to individual questions in category II—internal history (p. 67) All levels of difficulty High  % 87

Easy

Low % 12

High 86

Medium difficulty Low 24

High 76

Difficult

Low 12

High 87

Mean % (all) Low 16

49

Median % (all)

49


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each other. John Locke (1690) believed that government would need to get involved in personal affairs only when there was criminal or civil challenge to someone’s right to property. Fifty-six (out of 90) students attempted to answer this question. Four answered it correctly. This question is “difficult.” The mean percentage of correct responses was 55 and the median was 53. There were no easy questions in Category III. Of the “difficult” questions the highest percentage of correct responses for any one question was 81: T/F. Public high schools receiving government funds must allow student groups to meet, regardless of their religious or political content, if those schools allow non-curricular clubs in general.The answer is “true” (Westside Community Schools v. Mergens 1990). Fifty-three (out of 90) students attempted to answer this question. Forty-three answered it correctly. Of the “medium” questions, the lowest percentage of correct responses for any one question was 23: (i) To what does the term “State Action” apply? (a) A state’s right to nullify federal legislation on constitutional grounds. (b) A state’s duty to respond to a federal subpoena. (c) A state’s right to hear a criminal case if the crime occurred solely within that state. (d) The requirement that government must be involved for the Constitution or Bill of Rights to apply. (ii) T/F.  Marbury v. Madison establishes that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The answer to (i) is d. Sixty-one (out of 90) students attempted to answer question (i). Seventeen answered it correctly. The answer to (ii) is “false” (Cooper v. Aaron 1958; Baker v. Carr 1962). Fifty-two students attempted to answer question (ii). Twelve answered it correctly. The foregoing responses are summed up in Table 3.5. Table 3.5 Highest and lowest correct responses to individual questions in category III—external themes (p. 68) All levels of difficulty

Easy

High % 93

High n/a

Low % 7

Low n/a

Medium difficulty

Difficult

High 93

High 81

Low 23

Mean % (all) Low 7

55

Median % (all)

53


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Category IV—External History—includes 36 questions. The average percentage of questions answered was 50 (18/36). The highest percentage of correct responses for any one question was 83: T/F. In 1790, there were 4 million people in the United States, 17 % of whom were slaves.The answer is “true” (Monk 2003, 31). Fifty-nine (out of 90) students attempted to answer this question. Forty-nine answered it correctly. This question is of medium difficulty. The lowest percentage of correct responses for any one question was 11: How many times has the House of Representatives chosen the President? (a) (b) (c) (d)

0 1 2 3

The correct answer is d: Thomas Jefferson in 1800; John Quincy Adams in 1824; and Gerald Ford in 1974. Fifty-four (out of 90) students attempted to answer this questions. Six answered it correctly. This question is difficult. The mean percentage of correct responses was 47 and the median was 42. There was only one “easy” question in Category IV and 44 % of the respondents answered it correctly: The Federalist papers were written by (a) (b) (c) (d)

John Jay, James Madison, and Alexander Hamilton James Madison, George Mason, and Ben Franklin Alexander Hamilton, James Ellis, and George Washington John Jay, John Adams, and GouverneurMorris

The correct answer is a. Fifty-two (out of 90) attempted to answer this question. Twenty-three answered it correctly. Of the “medium” questions, the lowest percentage of correct responses for any one question was 29: Which of the following decisions made it illegal for laws to discriminate against women? (a) (b) (c) (d)

Bradwell v. Illinois, 1873 Goesaert v. Cleary, 1948. Hoyt v. FL, 1961 Reed v. Reed, 1971


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Table 3.6 Highest and lowest correct responses to individual questions in category IV—external history (p. 70) All levels of difficulty

Easy

High % 83

High 44

Low % 11

Low 44

Medium difficulty

Difficult

High 83

High 72

Low 29

Mean % (all) Low 11

47

Median % (all)

42

The correct answer is d: Reed v. Reed (1971). Forty-one (out of 90) students attempted to answer this question. Twelve answered it correctly. Of the “difficult” questions, the highest percentage of correct responses for any one question was 72: T/F. The Court supported nationalism in McCulloch v. Maryland, 1819.The answer is “true.” Forty-three (out of 90) students) attempted to answer this question. Thirty-one answered it correctly. The foregoing responses are summed up in Table 3.6. Overall, the average percentage of questions answered was 65. The highest percentage of correct responses for any one question was 94; the lowest was 5. The mean percentage of correct responses was 45 and the median was 41. Since all students took about the same amount of time to complete the exam, it is not clear why on average, students answered only 65 % of the questions, when many were able to answer all of the questions or close to it. That 94 % answered at least question correctly is promising, but this is mitigated by the question that only 5  % answered correctly. Since on average 45 % of the respondents answered any one question correctly, we may take this along with the other information in this chapter as evidence of considerable room for improvement in constitutional literacy among law enforcement professionals and others working in public safety.

SUMMARY This chapter has identified four kinds of evidence for pervasive lack of constitutional literacy among people, sworn and non-sworn, who should be more constitutionally literate. The first kind of evidence is anecdotal, much of which Chap. 1 offers. There are many examples of sworn officials and public opinion leaders confusing the Constitution with the Declaration of Independence or misstating constitutional provisions.


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The second kind of evidence comes from academia and the popular press, including think tanks, conferences, journal articles, and newspaper articles. The Annenberg Public Policy Center, for example, found that only 15 % of respondents to a survey knew that the Chief Justice of the US Supreme Court is John Roberts and only 38 % knew the three branches of government. The third kind of evidence comes from a survey of police basic training programs. On average only 6  % of these programs focuses on the Constitution, with much of that focus limited to some Amendments and Supreme Court decisions. The fourth kind of evidence comes from a test that 90 public safety professionals—mostly sworn police officers—took, with an average completion rate of 65 %; scores that on a standard grading scale would have four of the respondents earning Ds and the remaining respondents failing; and an average correct response of 45 % to any one question. Any one of the four kinds of evidence might be insufficient to argue for pervasive lack of constitutional literacy. For example, that a handful of US Government officials and public opinion leaders confuse the Constitution with the Declaration is no proof that this is the norm. But the four kinds of evidence taken together make clear that constitutional literacy is not as pervasive as it could—or should—be. Having discussed the nature and lack of constitutional literacy, we turn next to arguments for the practical and moral value of constitutional literacy, having anticipated the question, “So what?”

REFERENCES Ahranjani, Maryam, Caleb Medearis, and Jeffrey Shook. 2013. Evaluating high school students’ constitutional and civic literacy: A case study of the Washington D.C. chapter of the Marshall-Brennan Constitutional Literacy Project. Denver University Law Review 90(4): 917–937. Atwood, James. 2012. America and its guns: A theological expose. Eugene: Wipf & Stock. Baker v. Carr, 369 U.S. 186 (1962). Boaz, David. 2006. Jefferson was a great man, but he didn’t write the Constitution. Cato at Liberty [Web log], June 27. http://www.cato.org/blog/jefferson-wasgreat-man-he-didnt-write-constitution. Dao, James. 2000. NRA leaders cast Gore as archenemy. New York Times, May 20. http://partners.nytimes.com/library/national/052100nra-gore.html. District of Columbia et al. v. Heller, 544 U.S. 570 (2008).


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Haq, Husna. 2015. Why Michigan wants to make reading the U.S. Constitution mandatory. Christian Science Monitor, May 20. http://www.csmonitor.com/ USA/USA-Update/2015/0520/Why-Michigan-wants-to-make-reading-theUS-Constitution-mandatory. Hart, Melissa. 2013. Foreword: Public constitutional literacy; a conversation. Denver University Law Review 90(4): 825–831. Hobbes, Thomas. 1651. Leviathan. Kopel, David. 1999. What the Supreme Court has said about the Second Amendment. Saint Louis University Public Law Review 18. http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm. Locke, John. 1690. Second treatise of civil government. McCulloch v. Maryland, 17 U.S. 316 (1819). McNabb, Laura. 2013. Civic outreach programs: Common models, shared challenges, and strategic recommendations. Denver University Law Review 90(4): 871–892. Milbank, Dana. 2006. In the Senate, covering themselves in Old Glory. Washington Post, June 27. http://www.washingtonpost.com/wp-dyn/content/article/2006/ 06/26/AR2006062601321.html. Monk, Linda. 2003. The words we live by: Your annotated guide to the Constitution. New York: Hyperion. Newman, Burton. 2013. The NRA’s fraud: Fabrication of Second Amendment rights. HuffingtonPost.com, April 17. http://www.huffingtonpost.com/burtonnewman/the-nras-fraud-fabricatio_b_3103358.html.

POLICE BASIC TRAINING WEBSITES (POSTAL CODE IN PARENTHESES): • Alabama (AL) http://www.apostc.state.al.us/; http://www.apostc.state.al. us/LinkClick.aspx?fileticket=u41o7IiGHbI%3d&tabid=58 • Alaska (AK) http://www.uaf.edu/courses/courses-detail/index.xml?name=Law%20 Enforcement%20-%20LE&abrev=LE • Arizona (AZ) http://www2.gccaz.edu/academics/departments/public-safetyscience/lLEO/law-enforcement-training-academy • Arkansas (AR) http://www.clest.org/aleta/Pages/trainingSchedule.aspx • California (CA) https://www.post.ca.gov/regular-basic-course-training-specifications.aspx • Colorado (CO) https://www.arapahoe.edu/catalog/law-enforcement-academycourses.htm • Connecticut (CT) http://www.ct.gov/post/lib/post/basic_training/871_curriculum_hours.pdf • Delaware (DE) http://dsp.delaware.gov/dsp_recruiting_requirements.shtml • Florida (FL) https://www.fdle.state.fl.us/Content/CJST/Documents/Curriculum/ CMS2015/2015-LE-IG.aspx


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• Georgia (GA) http://www.gpstc.org/training-divisions/basic-training-division/basic-police-officer-training/ • Hawaii (HI) http://www.joinhonolulupd.org/officer/index.php?page=training • Idaho (ID) https://www.post.idaho.gov/about_post/AdminsMessage.html • Illinois (IL) http://www.isp.state.il.us/academy/cadettopics.cfm • Indiana (IN) http://www.in.gov/ilea/files/Basic_Course_Schedule_207.pdf • Iowa (IA) https://ileatraining.org/files/DDF/Form-Application_for%20_ Approval_of_Curriculum.pdf • Kansas (KS) http://www.kletc.org/pdf/ftbasictraining.pdf • Kentucky (KY) https://docjt.ky.gov/forms/ScheduleBook/2015/Schedule_2015. pdf • Louisiana (LA) http://www.cole.state.la.us/programs/post_Basic_Training. asp • Maine (ME) http://www.maine.gov/dps/mcja/training/index.htm; http:// www.mdle.net/publicsafetytraining.htm • Maryland (MD) https://www.baltimorecountymd.gov/Agencies/police/careers/ academy.html • Massachusetts (MA) http://www.mass.gov/eopss/funding-and-training/lawenforce/msp-acad/academy-overview.html • Michigan (MI) http://www.delta.edu/policeacademy/basic-police-trainingacademy.aspx • Minnesota (MN) https://www.google.com/webhp?sourceid=chromeinstant&ion=1&espv=2&ie=UTF-8#q=Hamline+University+Peace+Offic er+education+program • Mississippi (MS) http://www.sos.ms.gov/ACProposed/00013666b.pdf • Missouri (MO) http://www.stlouisco.com/Portals/8/docs/Document%20 Library/police%20academy/curriculum.pdf; http://leti.missouri.edu/academy.aspx • Montana (MT) http://leg.mt.gov/content/Publications/fiscal/interim/2015_ financemty_Sept/law-enforcement-academy-study.pptx • Nebraska (NE) https://www.excelsior.edu/c/document_library/get_file? uuid=6ad84b02-74cc-4123-9b81-80f6169c6109&groupId=12408 • Nevada (NV) http://post.nv.gov/uploadedFiles/postnvgov/content/Training/ NAC289.140%20CAT%20I.pdf • New Hampshire (NH) http://www.pstc.nh.gov/academy.htm; https://www. nhti.edu/academics/course-descriptions/criminal-justice-coursedescriptions#crmj121c • New Jersey (NJ) http://www.state.nj.us/lps/dcj/njptc/pdf/Basic-Coursefor-Police-Officers-BCPO.pdf • New Mexico (NM) http://nmlea.dps.state.nm.us/wp-content/uploads/2014/03/ Accreditation-Worksheet.pdf • New York (NY) http://www.criminaljustice.ny.gov/ops/docs/ training/ pubs/basicpolice/bcpooutline.pdf


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• North Carolina (NC) http://ncja.ncdoj.gov/getdoc/85c25fd2-0e0e-4e02927a-4adb73462d97/BLET.aspx ; http://ncja.ncdoj.gov/getdoc/c5459b4a7d9b-4627-a3c9-1807483b3150/BLET-Topic-List.aspx • North Dakota (ND) http://www.lrsc.nodak.edu/academics/programs/peaceoffice-training-law-enforcement • Ohio (OH) http://www.ucclermont.edu/content/dam/clermont/Academics/ Police%20Academy%20Documents/Ohio_Peace_Officer_Training_Curriculum. pdf • Oklahoma (OK) https://www.ok.gov/cleet/Peace_Officers/ • Oregon (OR) http://www.oregon.gov/dpsst/AT/Pages/StudentInfo.aspx; http://www.oregon.gov/dpsst/BD/Policy_Committee_Minutes/BPSST_ Minutes/Board102512.pdf • Pennsylvania (PA) http://www.portal.state.pa.us/portal/server.pt/gateway/ PTARGS_0_190926_561310_0_0_18/MPOETC_Basic_Police_Curriculum. pdf • Rhode Island (RI) http://www.rimpa.ri.gov/basicrecruitment/requirements. php; http://www.rimpa.ri.gov/basicrecruitment/samplebasiccourses.php • South Carolina (SC) http://www.scdps.gov/sctrooper/training.asp • South Dakota (SD) http://dci.sd.gov/LawEnforcementTraining/BasicOfficer Certification.aspx • Tennessee (TN) https://www.tn.gov/assets/entities/commerce/attachments/ POSTRules.pdf; http://www.nashville.gov/Police-Department/AdministrativeServices/Training-Academy.aspx • Texas (TX) https://www.cedarvalleycollege.edu/ContinuingEducation/Law EnforcementAcademy/Lists/WebPages/DispForm2.aspx?List=9a8656dd5138-4fe7-915b-951471617bb8&ID=24 • Utah (UT) http://www.slcc.edu/publicsafety/programs/law-enforcementacademy.aspx; http://continue.weber.edu/policeacademy/modules.aspx • Vermont (VT) http://vcjtc.vermont.gov/training/full_time/curriculum • Virginia (VA) http://www.nvcja.org/BasicTraining.aspx; http://www.dcjs. virginia.gov/standardsTraining/compulsoryMinimumTraining/cjsmanualLAW.pdf • Washington (WA) https://fortress.wa.gov/cjtc/www/images/2015_New_ Uploads/curricula_syllabus/WSCJTC_BLEA_Curriculum-July_2010Current2010-10-21.pdf • West Virginia (WV) http://www.statejournal.com/story/17794302/ wv-state-police-academy-gets-room-to-grow ; http://www.wvsp.gov/employment/trooperEmployment/Documents/brochure.pdf; http://www.bridgevalley.edu/sites/default/files/BridgeValley_Site_Files/Academics/ Academics/Documents/BVCTC%202015-2016-07.pdf • Wisconsin (WI) https://www.nwtc.edu/Programs/Pathways/Law-Safety-andSecurity/Law-Enforcement-Services/Criminal-Justice-720-Law-Enforcement-


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Academy; https://www.nwtc.edu/Programs/Pathways/Law-Safety-and-Security/ Program-Details/programs/Law-Enforcement-Academy-FAQs#cover; https:// www.nwtc.edu/Programs/Pathways/Law-Safety- and-Security/LawEnforcement-Services/Criminal-Justice-720-Law-Enforcement-Academy • Wyoming (WY) http://www.wleacademy.com/Basic/Information%20Guide%20 POB.pdf Raskin, Jamin. 2013. The Marshall-Brennan constitutional literacy project: American legal education’s ambitious experiment in democratic constitutionalism. Denver University Law Review 90(4): 833–870, 831. Reed v. Reed, 404 U.S. 71 (1971). Royal, K., and Darra Hoffman. 2013. Impaneled and ineffective: The role of law schools and constitutional literacy programs in effective jury reform. Denver University Law Review 90(4): 959–975. Scherer, Michael. 2015. Donald Trump. Time, December 21, 104–114. Somin, Ilya. 1998. Voter ignorance and the democratic ideal. Critical Review 12(4): 413–458. ———. 2004. Political ignorance and the countermajoritarian difficulty: A new perspective on the central obsession of constitutional theory. Iowa Law Review 89: 1289–1368. States v. Miller, 307 U.S. 174 (1939). Stevens, John Paul. 2014. Six amendments: How and why we should change the Constitution. New York: Little, Brown, & Co. Trop v. Dulles, 356 U.S. 86 (1958). Waters, Jessica, and Lynn Addington. 2013. The Marshall-Brennan effect: The benefits of teaching constitutional literacy for law students. Denver University Law Review 90(4): 901–915. Westside Community Schools v. Mergens, 496 U.S. 226 (1990).


CHAPTER 4

The Value of Constitutional Literacy

INTRODUCTION: KIM DAVIS AND THE SEPARATION OF CHURCH AND STATE On January 5, 2015, Kim Davis (b. 1965) took the oath of the office of Rowan County Court Clerk in Kentucky. The oath was in two parts: I Kimberly Jean Bailey Davis do solemnly swear that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of clerk of the court according to law; and I do further solemnly swear that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God. (Kentucky Constitution, sec 228) I Kimberly Jean Bailey Davis do swear that I will well and truly discharge the duties of the office of Rowan County Circuit Court clerk, according to the best of my skill and judgment, making the due entries and records of all orders, judgments, decrees, opinions and proceedings of the court, and carefully filing and preserving in my office all books and papers which come to my possession by virtue of my office; and that I will not knowingly or willingly commit any malfeasance of office, and will faithfully execute the duties of my office without favor, affection or partiality, so help me God. (KY. Rev. Stat. Ann. sec. 30 A.020) © The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4_4

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Upon winning the election, Davis told a reporter, My words can never express the appreciation but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter. (Menville 2014; my emphasis)

On June 26, 2015, the US Supreme Court ruled 5–4 that same-sex couples have the constitutional right to marry (Obergefell v. Hodges 2015). Thus, states must issue licenses to same-sex couples who request them and are otherwise eligible to marry, and each state must recognize same-sex marriages legally performed in any other state. Writing for the majority, Justice Anthony Kennedy justified the decision on the basis of the 14th Amendment’s Equal Protection Clause and Due Process Clause. Under the protection of these two clauses, Kennedy argued, there is a constitutional right to marry and no state has the constitutional right to deny that right to same-sex couples. More specifically, Kennedy posited four principles that he felt compelled the court’s decision. First, the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Second, marriage “supports a twoperson union unlike any other in its importance to committed individuals.” Third, marriage “safeguards children and families and thus draws meaning from the related rights of childbearing, procreation, and education.” And fourth, “marriage is a keystone of the nation’s social order.” None of Kennedy’s four points pertains to the Constitution explicitly, although one might be able to make a case for constitutional connections. Since the Constitution’s primary purpose was to establish a national government that is effective militarily and economically, the Constitution was not too concerned with individual autonomy. Still, many of the rights that the Bill of Rights enumerates make the most sense if predicated on the principle of individual autonomy: freedom of speech, freedom of religion, freedom from unreasonable search and seizure, the right not to incriminate oneself, among others, point to a respect for individual autonomy. Whether the constitutional commitment to individual autonomy extends to personal choice regarding marriage remains controversial. In any event, many legal limits to whom or what one can marry remain, without serious constitutional challenge. A sister may not marry her biological brother; no one may marry an infant; there is no legal provision for marrying inanimate objects. In short, even if we grant a general desirability of individual


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autonomy, this is not by itself an argument for the constitutional right to marry someone of the same gender. Nor does Kennedy offer this premise as sufficient to make his argument. He adds three more, suggesting that the total of four premises offers a compelling argument for his decision. Contrary to Kennedy’s second principle, there is nothing in the Constitution that speaks to support “of a two-person union unlike any other in its importance to committed individuals.” One wonders whether this implies a pre-emptive rejection of polygamy. Kennedy’s third principle raises more questions than it settles concerning possibly constitutional “rights of childbearing, procreation, and education.” Nothing in the Constitution proper recognizes these rights, although Supreme Court decisions such as those in Griswold v. Connecticut (1965)—concerning a couple’s right to manage its own birth control—and Roe v. Wade (1973)—recognizing a woman’s right to have an abortion—may support Kennedy’s third principle. Fourth, it is not clear that “marriage is the keystone of the nation’s social order,” or that this is constitutionally relevant even if it is true. In short, while the Court’s conclusion in Obergefell is clear, Kennedy’s defense of the decision is not constitutionally compelling. Nevertheless, a long-held tradition in the USA is that if the Court has declared something legal, then it is legal in fact. Thus, any objection on constitutional grounds to the Court’s decision will be difficult to defend. Kim Davis took a stab at it nonetheless. On the day of the Supreme Court’s ruling, Kentucky Governor Steve Beshear announced that Kentucky would comply with the Court’s order (Chamberland 2015). Protesting the Court’s order and the governor’s order on religious grounds, Davis asked Beshear for an executive order allowing clerks who have moral objections to the law to refrain from complying. Without the clerk’s name on the marriage license, it would be invalid. Beshear refused Davis’ request, but she, turned away same-sex couples anyway. Soon, to avoid charges of bias, she refused to issue any marriage licenses, regardless of the couple’s genders. On July 1, 2015, four couples sued Davis for refusing to give them marriage licenses. The American Civil Liberties Union filed the suit on behalf of the couples, two of whom were of the same gender, and two of whom were of opposite genders (Miller v. Davis 2015). David L. Bunning, judge of the US District Court for the Eastern District of Kentucky, presided. At one hearing, Davis claimed that her religious rights under the 1st Amendment gave her the right to refuse to issue the marriage licenses,


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since issuing the licenses would violate her Christian beliefs. Davis also refused to resign, since her deputies would be free to issue the licenses, and Davis felt that the court should not be issuing the licenses under anyone’s authority (Wynn 2015). Davis’s attorneys, from the Liberty Counsel law firm, noted that the plaintiffs could have obtained licenses from courts in other Kentucky counties, which suggested that the plaintiffs wanted primarily to force Davis to act against her beliefs. Before Bunning issued his decision, Davis sued Governor Beshear for ordering her to act against her religious beliefs (Cheves 2015). On August 12, 2015, Judge Bunning ordered Davis not to apply her ‘no marriage licenses policy’ to requests before her. Anticipating an appeal from Davis, the US Court of Appeals for the Sixth Circuit cut her off, declaring “It cannot be defensibly argued that the holder of the Rowan County Clerk’s office...may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court…There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal,” the panel further said. (Liptak 2015)

Davis (2015) filed an emergency appeal to the US Supreme Court, which refused to hear it. Davis responded: I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.

Claiming to be acting under God’s authority, Davis continued to turn away couples requesting marriage licenses (Blinder and Perez-Pena 2015). In response, the four couples who had sued her asked Judge Bunning to hold her in contempt of court. He did, ordering Davis to jail on September 3, 2015, until she agreed to comply with the order to issue the licenses. Although the plaintiffs had requested that Davis only be fined, Bunning refused, believing that others would pay the fine for her (Graham 2015). He released her on September 8 after she asked to have her name removed from the marriage licenses and the deputy clerks issue the licenses in her place. The deputies agreed to issue the licenses, whether or not Davis asked them not to. Davis returned to her office on September 14, allowing the deputies to issue the licenses without her name on them.


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It is tempting to dismiss Davis’s stance on the ground that she took an oath to obey the Constitution, US laws, and Kentucky’s laws, and her refusal to obey the laws in this case was an immoral violation of that oath. While this objection to Davis may withstand critical scrutiny in the end, it is not unanimous. Davis received a lot of direct support from important opinion leaders and some legal scholars. She also received support indirectly from the dissenting justices in Obergefell. In 1993, the US Congress passed and President Bill Clinton signed the Religious Freedom Restoration Act (RFRA; H.R. 1308 [103rd]). This law protects people’s religious liberty except in the case where a proposed legal restriction is “the least restrictive means of furthering a compelling government interest.” Although Congress meant for RFRA to apply both federally and at the state level, the US Supreme Court declared in 1997 that the RFRA applied only to the federal government (City of Boerne v. Flores 1997). In response 21 states enacted their own versions of RFRA. Kentucky did so in 2013. Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities (KY HB279-draft 4-4-2013).

Legal scholar Eugene Volokh (2015) argues that this requires Kentucky to take Davis’ side, although the state could also remove the requirement that Rowan County marriage licenses have her name on them. Note, however, Kentucky’s RFRA’s definition of a burden. This challenges Volokh’s argument, since the new marriage law did not withhold benefits from Davis, assess penalties against her, or exclude her from programs or access to facilities. Some political notables, such as Mike Huckabee, former governor of Arkansas; Senator Ted Cruz of Texas; and Bobby Jindal, governor of Louisiana, claimed that the Court was tyrannically violating Davis’s Christianity (Hanna et al. 2015). It is tempting to dismiss this as political hyperbole. A true tyrant has no government check or balance; the US Congress has the constitutional authority to remove justices for bad behavior. Also, Article 5 of the Constitution makes possible an Amendment that


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would define marriage in a way neither the executive branch nor the judicial branch could override. The Court acted autonomously in Obergefell, but not tyrannically. Others, such as Kentucky Senate President Robert Stivers, claimed that the Court had no right to redefine marriage (deVogue 2015). But the Constitution is silent on marriage including any proper definition of it. Nor does the Constitution speak to the Court’s right to define marriage or change the definition. What’s more, by extending the legal right to marry to same-sex couples, the court did not redefine marriage, the Court only extended a certain right, leaving the tradition of male-female marriages available to those who wish to engage in that tradition. A common refrain in letters to the editor was that if President Obama could choose which laws to enforce, why couldn’t an ordinary citizen— Kim Davis, in this case—do the same? (e.g., Hampton 2015). This is a bad argument on so many levels that one hardly knows where to begin the criticism. The Constitution does not prevent the President from exercising a great deal of discretion in choosing how to apply his executive powers. Also, if the President has acted incorrectly, then critics asserting this and then insisting that Davis should be allowed to do the same is logically inconsistent. What’s more, the Constitution does not grant ordinary citizens the same powers it grants the President. One unusual tack among some of Davis’s supporters was to argue that one should not need a license from the government in order to marry. This was the position of Matt Bevin, who became Kentucky’s governor in 2015 (Israel 2015). But there is nothing in the Constitution that prohibits the government from licensing marriages, and civil marriages have a long tradition of being accepted in the USA. Given the appeal to tradition by Davis’s supporters, consistency would require them to concede the government’s authority to license marriages. While the US Supreme Court did not address Davis directly, her supporters could cite the dissenting justices’ views in Obergefell as further ammunition for Davis’s side. Roberts gave seven reasons for his dissent in Obergefell: • Congress should decide whether to legalize same-sex marriage, since the Court’s task is “to say what the law is, not what it should be.” • “The fundamental right to marry does not include a right to make a state change its definition of marriage”;


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• Other court decisions removing barriers—such as race—to marriage, did not change the fundamental definition of marriage as being between a man and a woman • There is no constitutional right to marry someone of the same gender • The petitioners’ right to privacy had not been violated, since they were free to cohabitate and raise families • The majority’s argument would support polygamy as well as samesex marriage • The majority should not have “sullied those on the other side of the debate.” Justice Antonin Scalia added that the debate over same-sex marriage, “democracy at its best,” should have been allowed to continue into the voting booth. The Court’s having muted the debate was, according to Scalia, a direct threat to democracy. Justice Clarence Thomas added that the petitioners had not been deprived of life, liberty, or property, and so were not suffering from a violation of their 14th Amendment rights. Justice Samuel Alito added that the Constitution leaves the definition of marriage up to each state. We have already seen the Court majority’s decision in Obergefell, as Kennedy explained it, which serves as a critical response to the dissenting opinions and thus as a challenge to those who would use such dissent to defend Davis. Most direct criticisms of Davis faulted her disobeying the law or at least failing to enforce it, especially since she was an officer of the court (e.g., Bowman 2015; Liptak 2015). One might add that she willingly swore to uphold the laws of the land. Legal scholar Katherine Franke (2015) notes that by signing the license all Kim Davis is doing is certifying that the couple meets the state requirements; not whether she agrees morally with the proposed marriage. Law Professor Jonathan Adler (2015) notes that the state, not the church (or any other religious body) gets to determine what marriage is legally. Note that while Davis’s defenders tended to lean toward the right politically, critics of Davis comprised people from across the political spectrum. Since the story was breaking during the initial stage of the presidential campaign in 2015, one has only to look at the views of the candidates to see the broad political spectrum of Davis’s critics. Candidates on the left, such as Hillary Clinton, either criticized Davis for violating her oath of


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office or offered no public opinion. On the right, Republican candidates, including Donald Trump, Jeb Bush, Lindsay Graham, and Carly Fiorina agreed that either she should honor her oath or resign (Israel 2015). One wonders whether a higher degree of constitutional literacy would have kept Davis from her crusade and tempered the ardor of her supporters. In a nutshell, she argued that she had the constitutional right to practice her religion and that the US Supreme Court was wrong in its decision in Obergefell and in its refusal to hear—and grant—her appeal. Publically, Davis offered little evidence of constitutional literacy; many of her supporters offer little more. To be fair, one might wonder whether our degree of constitutional literacy is sufficient to justify our weighing into the debate and defending one side or the other. As we have seen from the different justices’ views in Obergefell, constitutional literacy by itself does not guarantee a solution that would satisfy everyone. Surely all nine Supreme Court justices are constitutionally literate, yet even they could not agree. At the same time, the majority decision is the official decision of the court, of which Davis was an employee. At the least this case and its many facets suggest the value of constitutional literacy, even if that is no guarantee of a satisfying resolution. How much less meaningless rhetoric and hurt feelings would there be if all the stakeholders were constitutionally literate? The answer is difficult to quantify, but navigating through the saga would be richer, if not easier, with a strong understanding of the Constitution as a foundation for the journey. To speak of such value is to invite at least two sorts of inquiry: what is the practical value of constitutional literacy and what is its moral value. This distinction invites the further distinction between sworn officials and non-sworn stakeholders. The moral value of constitutional literacy refers to the rights and responsibilities of those whom we should expect to display such literacy. The practical value of constitutional literacy is an answer to the question how such literacy is useful. These are not mutually exclusive questions, since one might argue that a practical value of constitutional literacy is its helping people to exercise their rights and fulfill their responsibilities. Applying the distinction between the practical value and the moral value of constitutional literacy should help us capture some of the finer points of our inquiry. Let’s look at the practical value first, moving from sworn to non-sworn.


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THE PRACTICAL VALUE OF CONSTITUTIONAL LITERACY The Practical Value for Sworn Personnel In general, people who have promised to support and defend the Constitution should know the Constitution well enough to evaluate their success or failure at keeping that promise. Thus, to the extent that we have the right to expect our public officials to keep that promise, we have the right to expect them to be constitutionally literate. And we must be constitutionally literate enough to hold them to their word. Any sworn official represents one of the three branches of government: legislative, executive, or judicial. In rare cases, an official may represent more than one branch at the same time. The Vice President of the USA, for example, serves both the executive branch and the legislative branch, as president of the Senate. In each branch, constitutional literacy will have practical value to the extent it helps the officials do their jobs. The Legislature Legislators have a double task: representation and legislation (the following is worked out in greater detail in Dreisbach 2009, Chap. 12). In both tasks, the legislators must keep the constituents in the loop so that the legislators can knowledgeably represent the community’s interests. Keeping constituents in the loop means informing them and educating them about the constitutional scope and limits of legislative rights and responsibilities. It means informing them and educating them about pending legislation— how the law will be worded and what impact it may have on the community. Also, keeping the constituents in the loop means providing them adequate access to the legislator so that they can express their interests and acquire the information they need to be well informed. In both tasks, representing and legislating, legislators face the question, which is the more important legislative task, to “secure the blessings of liberty,” as the Constitution’s preamble promises, or to ensure security at the cost of certain liberties? (Trotter 2007, 20). The task of representation includes making laws and overseeing the execution of those laws. The preamble to the Constitution lays out the legislator’s task: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common


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defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Ideally, any law the legislator makes should honor these goals. Thus, any law that threatens tranquillity, the general welfare, or liberty, for example, is contrary to the constitutional purposes of law-making and should be voted down or overturned. In addition to making the law, the legislature should monitor the promulgation and effect of laws and should oversee and manage those responsible for executing and adjudicating the laws. In short, constitutional literacy is essential to the legislators’ doing their jobs. And since engaging their constituents appropriately is also essential to being successful legislators, and since the constituents have the responsibility to work with their legislators, the constituents require a useful degree of constitutional literacy as well. The Executive Branch In broad terms, the task of the executive branch is to execute the laws, which ideally express the will of the people. Since the Constitution establishes the scope and limits of the executive’s rights and responsibilities, it stands to reason that constitutional literacy is useful to understanding, executing, and assessing those tasks. Article 2 of the Constitution is home base for the executive branch, although it focuses on the presidency and vice presidency to the exclusion of other areas of the executive branch. Much of the constitutional function of the executive branch comes from subordinate offices, starting with the cabinet departments, agencies, and bureaus, and moving down to the executive branches of local communities. A fruitful example of the executive branch, for our purposes, is law enforcement. Law enforcement is a major function of the executive branch of government, whose discussion in the Constitution, Article 2, comes between the legislature and the judicial branch of government. A thorough discussion of executive ethics might start with the office of the President of the USA, including his vice president, cabinet, and staff; then move to state governors; county councils; and city and town mayors. Presidents, governors, councils, and mayors bring important management functions to the criminal justice system, which are necessary to executing the will of the people as expressed through legislation. Moreover, these functions are governed by the Constitution and hence presuppose some degree of constitutional


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literacy. Because an adequate discussion of constitutional literacy at these executive levels would be so extensive, our discussion will be sufficient for the purposes of this book if we focus on law enforcement as a key representative of the executive branch of government. Law enforcement occurs in two places in the general operations of the USA’s political system (President’s Commission 2005, 7–12). The first is between the enactment of a law and a judicial decision about whether someone has broken the law. The second occurrence is when a court decides that someone has broken a law and the court puts that person into the corrections system. We shall use the term “police” to refer to the professionals involved directly in the first occurrence and we will focus on police as representatives of the executive branch. This is in keeping with making law enforcement one of the focal points of this book. Police in this broad sense include federal law enforcement officials from, for example, the US Departments of Justice, Treasury, Homeland Security, Health and Human Services, Defense, Transportation, and other cabinet-level departments that have a law enforcement function. Police also include law enforcement officials at the state and local levels. Note that the US Capitol police and their counterparts in the 50 states are part of their legislative branches, rather than the executive branch, although much of their constitutional responsibility is akin to their colleagues in the executive branch. While the first responsibility of the police is, theoretically, to the Constitution itself, in practice, police are beholden first to their communities, keeping the peace; preventing crime; investigating crime; apprehending, arresting, and processing suspects; writing and submitting reports; testifying in court; and dealing with colleagues. It is likely that a good number of the police have had successful careers without having sought constitutional literacy. It would have been enough to know the laws and relevant procedures, and to obey those laws and procedures, both on and off duty. That these laws and procedures come from the legislature, the courts, or executive decision, all of which are governed by the Constitution, need not concern the police who are otherwise doing their jobs well. Thus, a question we will encounter several times in this book is, what is the value of constitutional literacy to sworn officials who are doing good, if not exemplary work, without having a measurable degree of constitutional literacy? Two answers present themselves readily. First, since protecting the Constitution is the one promise every police official in the USA makes, it is better for the police to know what they are protecting than to simply rely on luck. A police officer might never have


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to use her gun or confront a terrorist, but knowing how to use a gun or knowing what to do when confronting a terrorist will make the officer better prepared to exercise those responsibilities well. Similarly, a police officer may never face a constitutionally challenging moment, especially if she follows departmental rules and local laws, but knowing the Constitution, that is, being constitutionally literate enough to face constitutional challenges if they should arise will make the officer better prepared to face those responsibilities well. Second, to the extent that police know the laws and procedures of their jurisdiction and agency—and quite possibly the general philosophy behind them—the police do have some degree of constitutional literacy. Police can be counted on to know the 4th Amendment well and to know such relevant court decisions as Terry v. Ohio (1968), which permits an officer to stop and frisk a suspect on the basis of reasonable suspicion, and Miranda v. Arizona (1966), which requires police to inform a suspect of the right not to incriminate oneself and the right to counsel, before the police interrogate the suspect. Constitutional literacy is a matter of degree and what we hope for from our police is a sufficient degree of constitutional literacy to be dependable and accountable in their work. The optimum degree is a topic for another time. Perhaps the most crucial parts of the Constitution for police are the 4th, 5th, and 6th Amendments, which protect suspects against unreasonable search and seizure and self-incrimination, and guarantee arrestees due process, the right to confront their accusers, and the right to a speedy trial. Problems will arise, therefore, when police professionals are unclear about what these obligations and rights entail or when they feel confident about these, but face a citizenry that disagrees with them. In addition to obeying the Constitution and the law, the officers have a fiduciary responsibility to the community. They act on behalf of the community members in ways the members cannot act themselves. For example, when an officer arrests a suspect, it is not for the police officer’s sake but for the sake of the people on whose behalf the officer has the power to act, thus contributing to their safety and security. In recognizing the officers as fiduciaries, the community trusts them to know what they are doing, a part of which is to protect the Constitution. Thus, the community assumes some level of constitutional literacy in the officer and the community needs some level of constitutional literacy to determine whether the officers are acting as they should.


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We have been speaking about the practical value of constitutional literacy to sworn officials, in the immediate case, police. We have done so, focusing on their responsibilities, about which there will be more to say when we consider the moral value of constitutional literacy for police. But where there is a practical value relative to police fulfillment of their responsibilities, there also are relevant rights. Police officers have the right to enter and search homes; to chase, stop, frisk, arrest, and interrogate people; and to use deadly force when necessary to protect themselves and other innocent people, or to effect an arrest. Some of these rights complement duties on the community’s part. For example, as we have noted, the community in its interaction with law enforcement must respect the law, respect the police, not hinder and sometimes assist the police in their work, respond honestly to an officer’s inquiries, and use the 911 system responsibly. The Judiciary The Constitution’s framers did not anticipate the present judiciary’s importance in America’s criminal justice system. In Federalist Paper No. 78, Alexander Hamilton (1788) writes that “The judiciary is incontestably the weakest of the three branches of power,” since “it can never successfully attack the other two” branches. In this paper, Hamilton (1788) cites French political philosopher Montesquieu’s claim that “Of the three powers above mentioned, the judiciary is next to nothing.” It turns out, however, that much of the controversy that involves the Constitution comes from the courts. We saw this in the synopsis of the Kim Davis case at the beginning of this chapter. As the President’s Commission on Law Enforcement and Administration of Justice (2005) puts it, The criminal court is the central crucial institution in the criminal justice system. It is the part of the system that is the most venerable, the most formally organized, and the most elaborately circumscribed by law and tradition. It is the institution around which the rest of the system has developed and to which the rest of the system is in large measure responsible. It regulates the flow of the criminal process under governance of the law. The activities of the police are limited or shaped by the rules and procedures of the court. The work of the correctional system is determined by the court’s sentence. (135)

The judiciary operates in the USA within an adversarial system. This includes judges, lawyers, juries, and court reporters. There are other roles


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in the courtroom as well, such as the paralegal, the bailiff, and the court clerk. With the legislators and the executive branch, the judiciary stands to benefit from constitutional literacy. The Adversarial System There are two principal systems of adjudication world-wide. The adversarial system, which the USA has, is in the common law tradition of developing abstract legal principles from specific cases and judicial decisions. Its roots are British. And it is governed primarily by Article 3 of the Constitution and relevant Amendments. The inquisitorial system is in the civil law tradition of identifying abstract rules and then applying them to specific cases. Its roots are Roman. In the adversarial system, each party to the case gathers evidence and constructs arguments to try to prove its point to an impartial third party— a judge or jury. Ideally, a thorough presentation by both sides of the issue will allow the truth to rise to the top, giving the neutral finder of fact (the judge or jury) the chance to offer an appropriate disposition of the case. In practice, of course, the personality and ability of the various players in the trial may have a profound effect on its outcome, raising practical and moral issues of unfairness, ineptness, and bias, for example. In the inquisitorial system, the judge or tribunal of judges develops the case in an attempt to engage in an impartial search for the truth (Schrader 1988, 13). Thus, in the adversarial system each of the parties must be good at this sort of investigating and arguing, which assumes a fairly high level of constitutional literacy. In an inquisitorial system, the judge primarily needs these skills. Also, in the adversarial system, the judge’s primary task is to produce and maintain a forum for each party to make its best case, while in an inquisitorial system, the judge creates the case itself (Kipnis 1986, 29). The adversarial system in the USA has a constitutional foundation, especially Article 3, and the 4th through 8th, and 14th Amendments. As the baseline, the Constitution permits legal punishment only for specific acts that a plaintiff (in civil cases) or prosecutor (in criminal cases) proves in court to have violated existing laws. Thus, no one in the USA can be punished without reason or punished without proof of committing a crime. Nor can anyone in the USA be punished ex post facto, that is for an act that was not a crime when he acted. Any attempt to punish a defendant must apply due process. The defendant is presumed innocent unless the plaintiff can prove guilt by a


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preponderance of the evidence or the prosecutor can prove guilt beyond a reasonable doubt. Note that the Constitution does not use the terms “presumption of innocence,” “A preponderance of the evidence,” or “beyond a reasonable doubt” (Whitman 2005). The defendant must receive notification of the specific charges before the trial starts and be able to hire an attorney to represent him. Then, the defendant must be able to confront his accusers, present evidence on his behalf, and have an impartial jury weigh that evidence. The plaintiff or prosecutor also has rights (Kipnis 1986, 23). Within legal limits, she may submit a charge or appeal to a judge or group of judges, summon the defendant to court to respond to the charges, have the judge or judges make a decision, and have the decision enforced if the plaintiff or prosecutor wins. The biggest practical problem due process presents is that it is not an efficient process—it favors the rights of the accused over the expeditious resolution of the case (President’s Commission 2005, 125). This has caused a huge backlog of cases in lower courts, leading at times to “assembly line justice” (President’s Commission 2005, 128). Often in lower courts prosecutors and defense attorneys seek to cut deals that deprive the parties of the full hearing in court to which they are entitled. In criminal cases, figures for the number of convictions due to plea bargains rather than trials are debatable but tend to be over 90 %. For example, “nationally, for fiscal year 2004, 95.5 percent of the 51,666 convictions were reached through guilty pleas. That means that only 2,316 U.S. District Court cases across the country went to trial” (Ward 2006; also see Langbein 1980). Thus, much adjudication is administrative rather than judicial, which raises more constitutional concerns about the defendant’s chance for a fair trial. The adversarial system in general, its constitutional restraints, and the resulting backlog pose practical challenges to each of the adjudicating professions in different ways. While we may presume a high level of constitutional literacy among judges and attorneys, shouldn’t it be the case that the more constitutional literacy is distributed among all the stakeholders in these challenges, the better? The Judge The judge presides over the court, whether there is a hearing, a trial, or an appeal of a lower court’s decision. She also signs warrants and may issue legal opinions on certain issues that do not require an appearance on the


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bench. In an adversarial system, the judge must be impartial, independent, and accountable. She must also realize that her decision could set a legal precedent that will serve as a premise in future legal cases. Thus, in the USA, she must be constitutionally literate to a high degree. As legal ethicist Kenneth Kipnis (1986) argues, there are four primary advantages to having a responsible and informed judge oversee an adversarial proceeding (24). First, the judge will know and apply legal standards that minimize the chance of a trial being unfair. Second, the judge will lack bias that would tip the scale in favor of one party or the other. Third, the judge’s authority “equalizes the power” of the two parties. Fourth, the outcome of the trial usually settles the matter, at least by the time there are no more appeals, whereas the feud might continue unabated if the community had no impartial judge on whom to rely. The Lawyer The adversarial system is at its best when each side of a dispute is able to present the best case possible. Such a presentation requires detailed knowledge of the law, judicial proceedings, and legal argument. Such a presentation, in other words, requires the skill of an attorney, which in the USA requires a high degree of constitutional literacy. The most significant services that a lawyer offers are as a counselor and as a representative (Kipnis 1986, 34–35). The lawyer also may serve as a negotiator or as a non-adversarial representative, such as in the writing of a will or the registering of a patent. The primary client is the person seeking counseling or representation. As a counselor, the lawyer offers advice about legal rights, statutory law, and ordinances. She should offer this advice as neutrally and objectively as possible, and with as strong an understanding of the Constitution as is necessary to the task, leaving it to the client to take the advice or not. In turn, the client should have the degree of constitutional literacy necessary to know whether to take the attorney’s advice. As a representative the lawyer argues on behalf of the client in the courtroom, acting as the client’s fiduciary and zealous advocate, and thus showing a strong bias in the client’s favor—all practical matters requiring a high level of constitutional literacy. So much for the practical value of constitutional literacy to sworn officials, whether they are in the legislative, executive or judicial branch. By now we should be ready to hold forth on the practical value of constitutional literacy to Kim Davis and her supporters and critics. A higher degree of constitutional literacy among all of them might not have settled the


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issue of Davis’s refusal to do what she swore an oath to do, but it would have ensured that people were better informed about the issues and thus better able to participate in the debate intelligently. We turn now to the practical value of constitutional literacy to nonsworn stakeholders. The Practical Value for Non-sworn Stakeholders Non-sworn stakeholders include citizens and non-citizens. Non-citizens include those who are in the USA legally or illegally. It’s tempting not to discuss non-citizens any further, since one would not expect them to be constitutionally literate. Yet, we ought to include them here for two reasons. First, according to the US Supreme Court, even non-citizens in the USA are protected by the 14th Amendment (Yick Wo v. Hopkins 1886) and by the 5th and 6th Amendments (Wong Wing v. U.S. 1896). And states may not prohibit school-aged illegal aliens from enrolling in public schools (Plyer v. Doe 1982). Second, non-citizens who are preparing for citizenship probably know more about the US Constitution than most natural-born US citizens (US Citizenship and Immigration Services 2016). Thus, all non-citizens in the USA stand to benefit from constitutional literacy, and citizens-to-be may well have achieved a degree of constitutional literacy that most ordinary US citizens have not. So constitutional literacy is relevant to non-citizens as well as to citizens. Non-sworn citizens play many roles for which constitutional literacy might have practical value. These roles include participating in the public and legal life of the community, either by obeying the law or by breaking it; participating in public political conversations face-to-face, in letters to the editor, or on radio and TV call-in programs, for example; studying civics in school; voting; and serving on a jury. Thus, constitutional literacy has practical value for citizens who wish to function knowingly in the legal and political contexts of the USA or who want to know more about their country. In general, recall three observations from Chap. 1. First, legal scholar Toni Marie Massaro (1993) notes that, “Americans tend to define themselves and their assumed rights in reference to constitutional principles more than any other tenets” (70). Second, Massaro (1993) argues that “constitutional literacy is important not only to intelligent self-governance but also to the mutual respect and toleration that is necessary for peaceful co-existence within a heterogeneous culture” (129). Third, legal scholar


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Ilya Somin (2004) sums this up nicely: “A largely ignorant electorate will often be unable to impose majoritarian control over elected officials” (1297). This is not a new idea. According to legal scholar Charles J. Crimmins (2013), Thomas Jefferson and his legal mentor, George Wythe, “believed constitutional literacy was the responsibility of every citizen and essential to a self-governing society” (1003). Concerning the plight of the constitutionally illiterate voter, it is safe to say that an appreciable number of voters are voting for reasons other than their grasp of the constitutional relevance of their choices. As Law Professors K.  Royal and Darra L.  Hoffman (2013) note, “Service on a jury is one of the most important moments of civic participation for any citizen and effective juries must include jurors with a strong understanding of our system of government and the rule of law.” Thus, Royal and Hoffman recommend “increasing civics education in schools but also including a short, basic civics class as part of any jury service” (959). In other words, one possible practical payoff of increased constitutional literacy is in a jury’s being able to render a more appropriate verdict. There is a long tradition of students learning civics in school, yet this does not seem to have done much to promote constitutional literacy sufficiently to serve the practical needs of the engaged citizen, the voter, or the juror. There will be more to say about this in Chap. 6, but here, let us acknowledge the effort of some scholars and organizations to promote constitutional literacy in the classroom. One notable effort is the MarshallBrennan Constitutional Literacy Project, which we encountered in Chap. 3, pointing toward the lack of constitutional literacy that this project and others are trying to remedy. With headquarters in the Washington School of Law and chapters at many law schools, this project was founded by law professor Jamin Raskin (2013), with the aim of having upper-level law students teach constitutional courses in public high schools. With a focus on constitutional rights, the project’s curriculum includes the examination of key legal terms and several court cases. For Raskin (2013), the combination of legal education and civics engagement benefits both the law students and the high school students, which indicates the practical value of constitutional literacy. Law Professors Jessica L.  Waters and Lyn A.  Addington (2013) note that a specific benefit on the law students’ side is that their work with MarshallBrennan tends to increase their interest in doing public work upon earning the law degree. In another study of the effects of the Project, Maryam


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Ahranjani et al., (2013) found that “high school students’ increase in knowledge about constitutional rights and responsibilities increased their civic participation.” Law professor Dawinder S.  Sidhu (2013) identifies three specific benefits of law students teaching constitutional literacy to high school students: the law students model professional behavior; the law students “serve in mentoring roles beyond the classroom experience”; and high school students “have access to people and opportunities they might otherwise not have and to discuss current and local events in their discussion of constitutional issues” (977). So far, we have made a case for the practical value of constitutional literacy to sworn and non-sworn, in a variety of roles and functions where constitutional literacy is relevant. Much of the practical value is in helping people serve these functions better than they would in the absence of constitutional literacy. Serving these functions better is of moral significance as well, a point to which we turn next.

THE MORAL VALUE OF CONSTITUTIONAL LITERACY The Moral Value for Sworn Personnel Sworn officials, as professionals, have a moral responsibility to do their job well. In general, this entails good moral character, which in turn requires moral wisdom. This is true for both sworn and non-sworn. For the sworn official there is also the particular requirement of adhering to the principles of professional ethics in order to exhibit good moral character. Good moral character is a virtue. Virtue, as Aristotle (Nicomachean ethics 1105b20–1108b10) claims, is the ability habitually to know the good and do the good. The good, he says, is a species of the perfect and since “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. Since we have already taken a close look at a variety of sworn positions within the legislative, executive, and judicial branches, it should suffice here to use one example of a sworn official as we consider the moral value of constitutional literacy. We have a useful example in our opening case: Kim Davis. What are the moral implications of


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her story and how might constitutional literacy contribute to an improved moral picture? In deciding what is morally good for any given case, and thus, to do the moral good, one must be able to identify and assess the relevant consequences, rules, and duties. Together, these comprise the three basic theories of ethics: consequentialism, regularianism, and deontology. Many ethicists embrace one to the exclusion of the others, but each of the theories has its shortcomings which may necessitate applying different theories to different cases. Let’s take a look at the three and then consider virtue as a fourth theory that may have more general, if not universal, application. Consequentialism Consequentialism holds that an act is morally good if its consequences are good, that is, “the end justifies the means.” One consequence of Kim Davis’s dissent is her satisfaction at preserving what she sees as her religious integrity. If this was all that mattered morally, and we accepted Davis’s assessment, we would have little to complain about. But there is also the consequence of same-sex couples not being able to exercise their right to marry in an American jurisdiction where they have that right. An advantage of consequentialism is that we need only the objective evidence, the consequences of an act, to pass moral judgment. Although in Davis’s case, we must take her word that she was religiously satisfied, we still see the unsatisfying consequences of her dissent for the couples seeking marriage licenses. For consequentialism, an act is morally good relative to a particular culture or time. This is relativism. The contrary view is absolutism, the view that at least some moral values are absolute—always morally good or always morally bad. This distinction muddies the waters in Davis’s case, since, on the one hand, she sees same-sex marriage as absolutely bad, but, on the other hand, she is insisting that whatever the moral views of others, her views should be respected, given her individual rights under the Constitution. It is worth noting, too, that moral relativism faces a major logical problem: essential to relativism is the claim that there are no absolutes. But note that this claim is an absolute. Thus, to the extent that consequentialism is relativistic, it may not be an ideal moral theory to apply in Kim Davis’s case. Another challenge to consequentialism, which regards an act as morally good if the consequences are good, is the question, Good for whom? Two types of consequentialist theories, egoism and utilitarianism, address this


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question but offer conflicting answers. Egoism argues that an act is morally good if its consequences are good “for me,” while utilitarianism holds that morality means achieving the greatest good for the greatest number of stakeholders. Among egoism’s theoretical shortcomings is its inability either to see the possibility of self-sacrifice (Hobbes 1651) or to imagine a morally good act of self-sacrifice (Rand 1943). Although Davis was claiming to be acting out of duty to her God, there is an egoistic element in her putting her personal interests ahead of her professional interest or the interests of many of her constituents. Utilitarianism’s goal of achieving the greatest good for the greatest number is laudable on its face, but who gets to decide: the stakeholders themselves or those who know better? Even if Davis were able to garner support from a majority of people weighing in on her case, this would not necessarily mean she is correct. Perhaps a wiser minority—e.g., a small group of people with a higher degree of constitutional literacy— would have a better sense of right and wrong in this case. Another problem that such a majority might present is the “tyranny of the majority” (Tocqueville 2003). That a majority benefits from a particular act, may not justify the suffering of the minority. Slavery and Jim Crow laws in the USA are two examples of moral evil that may nevertheless have had the support of a majority at one time. Many would make the same case about same-sex marriage: just because a majority of stakeholders opposes it does not thereby justify prohibiting it. The argument that something is good, true, or superior simply because a majority says so commits the fallacy of argumentum ad populum or appeal to masses. In the matter of Kim Davis’s refusal to do her job, it would seem that one constitutionally literate authority, such as the Supreme Court, has the moral upper hand, even if it is in the minority otherwise. In addition to being a relativist, consequentialism tends to hold that moral value is subjective, that is, in the judge’s mind, not in the object of being judged. This is similar to the adage “Beauty is in the eye of the beholder.” For the subjectivist, to say, for example, “Same-sex marriage is immoral” is equivalent to saying “I don’t approve of same-sex marriage.” This is contrary to objectivism, the view that moral value belongs to the object being judged. Same-sex marriage may not be morally objectionable in itself, but one still might not approve of it for personal reasons. To the objectivist, if the subjectivist were correct, morality would be a matter of personal taste and, therefore, a moral debate would be as meaningless as arguing about whether chocolate chip cookies taste good. Davis seems


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to think she is making an objective claim in her condemnation of samesex marriage, yet she also comes to this position having chosen to join a particular denomination of Christianity, which does not agree with all Christian denominations on this matter. To what extent, then is Davis’s position subjective? Also, given the Constitution’s pointed refusal to get into religious matters, would a higher degree of constitutional literacy benefit Davis by helping to put her religious convictions and her constitutional duties in their proper place? Consequentialism will not suffice for all moral decisions: a consequentialist premise may not always help a moral argument. Sometimes consequences are significant to the moral worth of an act; sometimes they are not. Also, consequentialism alone will not help us determine when to invoke a different moral theory. For this reason, we consider two other concepts of moral argument: regularianism and deontology. Regularianism Regularianism holds that an act is just, and therefore morally good, if it obeys a rule, and unjust, and therefore morally bad if it violates a rule. As a rule, in the USA, since the Supreme Court’s decision in Obergefell, US courts must issue marriage licenses to same-sex couples who otherwise qualify and each state must recognize any legal marriage that occurred in any other state. Davis chose to violate this rule and received a great deal of support for doing so. Rules appear in many forms, such as divine commands (“Thou shalt not commit adultery!”), criminal and civil laws (“Don’t rob banks!”), social norms (“Say ‘please’ and ‘thank you!’”), and professional codes of ethics (“Treat all clients with respect!”) For at least four reasons, rule-based ethics is not always helpful in moral decision-making. • The rule may command a morally bad act, as did the unjust German laws under Adolph Hitler, or the unjust laws in the USA that prohibited mixed-race marriages, which the Supreme Court declared unconstitutional in Loving v. Virginia (1967). • A set of rules may contain contradictory commands: consider the law that permits same-sex couples to marry and the divine rule, according to Davis, that prohibits such marriages. These two commands conflict with each other and in the absence of a third rule that pre-


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scribes the proper adjudication of this dispute, there seems to be no hope of resolution. Of course, in legal matters in the USA, The Constitution appears to have the last word: This Constitution, and the Laws of the USA which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the USA, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding (U.S. Const. Art. 6, cl. 2).

• A rule that is good in general may not apply in a particular circumstance, such as the rule that a US citizen has the right to practice her religion as she sees fit. • There may be no rule that applies to the situation that requires a moral decision. When Davis announced her refusal to sign the marriage licenses, it remained unclear whether the licenses in Rowan County, KY, could be issued under someone else’s name, such as the name of a deputy clerk. At the time, there was no clear rule to decide either way. Although there are many cases in which we should obey the rules, especially if they are just and we have agreed to obey them, as the four reasons above show us, regularianism does not offer everything one needs to make a good moral decision. Thus, the moral value of constitutional literacy cannot be limited to its role in helping people obey the rules. Deontology Deontology (from the Greek deont—from obligation) holds that an act is morally good, if it is done from duty, and morally bad otherwise. In a sense, this is the most promising of the three basic theories of morality, since by definition duty is what morally someone ought to do. Consequences and rules may be morally bad, but duty is never bad. Deontologist Immanuel Kant (1964) believed that our reasons for an action make a moral difference to the action. For example: if a person saved your life so he could kill you, that is morally different (and more unjust) than his saving your life because he wants you to live long and prosper. The consequence (saving your life) in both scenarios is the same, but the motive is different. In the morally better case, the person seeks to


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do something good. Davis claims that she is doing her duty as a Christian. Whether she is, it is fair to concede that she believes she is doing the right thing. To this extent, then, her motive is good, even if from a constitutional point of view it is misguided. Critics offer at least three challenges to deontology. First, Kant claims that a duty is absolute, that is, if it is good for one person to obey it, then it is good for everyone to obey it. Thus, Kant’s view is open to criticism from relativists, who hold that nothing is morally absolute. Second, deontology makes it difficult to be moral all the time. For Kant, it is not enough to do your duty; doing your duty must also be your motive. A third criticism of deontology is that it does not help us resolve conflicts of duty. In taking her oath of office, Davis acknowledged a duty to obey the laws of her county, state, and nation. She also claims a duty to refrain from certain acts that the law prescribes. At first blush, this appears to be an obvious conflict of duty, although some might argue that only one or the other is a genuine duty, or that one duty trumps the other. In any case, deontology itself does not give clear guidance on how to resolve conflicts of duty—indeed, Kant declared that such conflict was logically impossible, since a duty is always good and its contrary must therefore always be bad. But as we see in the Davis case and in many examples from everyday life, conflicts of duty are real. Thus, deontology is not sufficient for making all moral decisions. Each of the three basic moral theories is of limited use in moral decisionmaking, so a theory that synthesizes and takes the best from the three while avoiding their shortcomings would be useful. Virtue For Aristotle, as noted above, ethics is a matter of human character, not the consequences of an act, or a rule or duty that governs the act. Virtue is good moral character and vice is bad moral character. Virtue is the ability habitually to know the good and to do the good. Thus, virtue theory may be especially useful when making moral decisions. The good in virtue, for Aristotle, is an element of perfection: the better something is the closer to perfect it is. Something is perfect when there is neither too little of it, nor too much of it. Thus, the good is the mean between the extremes of deficiency and excess. Virtue, then, is a matter of habitually finding and hitting the mean between extremes. To make this theory more useful, Aristotle invokes the four cardinal or basic virtues on which all other virtues hinge: justice, courage, temperance, and prudence.


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Justice Justice is the mean between giving someone less than he deserves, such as slapping a serial killer on the wrist and sending him home; and giving someone more than he deserves, such as executing someone for shoplifting. Given the decision in Obergefell, has Davis treated justly the same-sex couples who have come to her for marriage licenses? To the extent that the US Supreme Court is the authority on constitutional justice, the answer is yes. Although, Davis’s supporters held that it was unjust to deny her religious freedom to disobey the court order. Courage Courage is the mean between cowardice and foolhardiness. Did Davis show courage in sticking to her religious principles in violation of her oath and her job description? Only on the most cynical view did she act cowardly—for example, she took her stance out of fear of going to hell. More likely, if her critics are correct, she acted in a foolhardy fashion, choosing to fight where such a fight was inappropriate. Temperance Temperance is the mean between a deficient use of an available resource and excessive use of an available resource. Since we often associate temperance with food and drink, we might think of anorexia as intemperately deficient and gluttony as intemperately excessive. But temperance pertains to use of any resource. For example, citizens who call 911 for an ambulance when there is no medical emergency, use this service intemperately. Citizens who have the classic signs of a heart attack but refuse to call 911 for fear of wasting the EMT’s time are also using the service intemperately. Davis had the good will of the people who voted her into office. From that position, she took her stand against same-sex marriage when her job description called for her to issue marriage licenses to same-sex couples. Did she use the resources of her office intemperately? Prudence Prudence or practical wisdom is the mean between acting on insufficient knowledge, such as leaping before you look, and failing to act in spite of sufficient knowledge to justify an act. For example, some might claim that Davis acted on insufficient knowledge, especially of the Constitution, when she quickly and uncritically announced that she would ignore the decision in Obergefell. Either that or she knows the Constitution well and


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the details of the majority decision in Obergefell, but she chose to ignore them anyway. The most prudent thing for Davis to do, given the strength of her religious convictions, was to step down from a job in which she promised to put the Constitution and the laws of the land first. As we consider the moral value of constitutional literacy for sworn officials, we can identify three distinct advantages to virtue theory. First, virtue theory helps us to choose which of the three basic moral theories to apply to a moral decision. Sometimes consequences matter, sometimes not. The same holds with rules and duties. Aristotle suggests that people avoid excessive or deficient concern for consequences, rules, or duties by deciding when such concern is deficient or excessive relative to other alternatives and by testing the alternative, people choose according to how courageous, just, temperate, and prudent that choice is, over the others. In Davis’s case, the most virtuous decision would have been for her to fulfill her official duties or to resign. This does not discount the importance of the consequences of her act and the rules that pertain to her act, but it helps put the moral theories in their proper perspective in this case. Second, virtue theory offers a reasonable response to the debate between absolutism and relativism. The principle that we should choose the mean between extremes is absolute, and the cardinal virtues are always morally good. But the mean is relative to the particular circumstance. A Christian minister is well within her legal and constitutional rights to refuse to marry a same-sex couple. Indeed, she is free to turn down any couple who asks her to officiate. But a court clerk does not have the same freedom. In the latter case that denial is an extreme; in the former case less extreme and thus closer to the mean. Thus, in a sense, both relativism and absolutism are correct. Third, virtue theory gives us a way to define integrity. People of integrity will generally be honest, will do only that which they would feel good about having reported in the newspaper, will be able to look at themselves in the mirror, and so forth. But this could just as easily describe a sociopath—that is, someone with no moral conscience. A traditional definition of integrity is worth noting: someone has the integrity to the extent she has integrated the four cardinal virtues in her life. Thus, to have integrity is to habitually act courageously, justly, temperately, and prudently: qualities we hope for in our sworn officials and which appear to be lacking in Davis’s case along with, and perhaps due in part to, a lack of constitutional literacy. Referring to professional ethics more specifically than to ethics in general, we may describe professional ethics partly in terms of a set of minimum


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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. We 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 ok to lie in defense of the Constitution? Whatever the ambiguities on this list and whatever we might want to add to or remove from this list, it stands to reason that if one’s baseline 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 moral responsibility. Thus, to the extent that we have the right to expect our public officials to act with integrity, we have the right to expect them to be constitutionally literate. And we have the obligation to be constitutionally literate enough to hold them to their word. Moral Value for Non-sworn Stakeholders Non-sworn people in the USA, who have a stake in constitutional literacy, do not have the same degree or kind of moral responsibility that sworn officials have. For one thing, the unsworn have not formally promised to protect, preserve, and defend the Constitution. Nor are many of these people in professional positions where success on the job requires constitutional literacy. Nevertheless, as with the practical value of constitutional literacy to non-sworn stakeholders, there is moral value to constitutional literacy. For example, voting is a privilege the desirable exercise of which includes an informed decision. This information should include not only the character, abilities, and plans of the candidates, but how these attributes of and facts about the candidates stack up against their constitutional duties. To have and manage this information well in preparation for an intelligent vote requires some degree of constitutional literacy. There is no formal rule to this effect—all else being equal, people need only to be at least 18 years old, residents of the place in which they are voting, and duly registered to vote; they do not have to know why they are voting the way that they are or to have prepared for the vote in advance. But one could argue that voters have a civic duty to prepare and that careless voting can have morally bad consequences.


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Perhaps the duty to be constitutionally literate is even greater for those serving on a jury. We have noted the practical value of constitutional literacy to jurors. As with the judge, the jury’s primary clients are the parties before the court, but the jury’s actions will also impact the community. Unlike with judges and attorneys, the jury’s constitutional role is limited to the trial and thus limited by the lack of any professional requirement to know the Constitution or the laws, rights, and concepts of justice that come from it. Therefore, jurors face many of the same moral problems that other adjudicators face because of the rights and responsibilities of the profession, but they are much less prepared to deal with those problems. The 6th Amendment to the US Constitution sets the stage for jury ethics in criminal cases: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….

The 7th Amendment addresses civil trials: In suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States than according to the rules of common law.

Note that there is no constitutional guarantee of a right to trial by a jury of one’s peers, although one can find this right in the Magna Carta (1215), which is an important ancestor of the US Constitution: No freemen shall be taken or imprisoned or disseised {deprived} or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land (#39).

There is a debate about the value a jury adds to the criminal justice system. Political scientist Jeffery Abramson (1994, 3, 4, 7) notes seven reasons for being skeptical about such value. • A fully impartial juror would need a pure conscience, which is an ideal that no one person can achieve. • “Jurors tend not to measure up to the challenges of modern litigation.”


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• “Attempts to balance juries demographically can slow down” jury selection. • Justice means treating like cases alike, but history shows that jurors don’t do this. • “Defendants play to the emotions and prejudices of the jury, so the trial becomes theatrical, pushing the quest for justice aside.” • A jury is not democratic because it allows an anonymous group of unelected people to ignore laws that a democratically elected legislature has enacted. • The ideal juror is ignorant of the case prior to the trial. Thus, the more well known the case is the less observant and aware of current events the juror should be. In spite of these concerns, Abramson (1994) defends the jury’s role (9). It is, he says, a deliberative body rather than a representative body, and therefore, one of the last bastions of true democratic deliberation. It supports Aristotle’s point that an advantage to democracy is its gathering up of the “collective wisdom” of the people. Law professor Nancy King (2006) notes four advantages of a jury trial over a bench trial. • A jury protects litigants from abuse of judicial power. • A jury brings community-based sense to fact-finding and to the application of law to facts. • A jury helps to promote acceptance of case outcomes and legitimacy of the justice process. • A jury increases the lay participation in our democracy. Jurors have a lot of responsibility and a lot of rights for the relatively brief time they serve. For the jury system to play its proper role in criminal justice, jurors must fulfill these obligations well and exercise these rights wisely. The professional life of a juror consists of six stages: the summons, the voir dire process, the trial, the deliberations, the verdict, and the posttrial. Each of these stages provides moral challenges and opportunities, which we may consider in light of obligations of trustworthiness similar to those of legal professionals. Professionals have an obligation to be competent. There is no specific obligation of competence for the juror. In fact, depending on how weak


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a party’s argument is, the attorney may hope for an incompetent jury that is easy to persuade through theatrics and fallacious reasoning. However, for the jury system to fulfill its role in criminal justice, the jurors should be able to follow and evaluate both parties’ arguments, understand the judge’s instructions, and engage thoughtfully with fellow jurors during deliberations. This is a difficult task in the absence of constitutional literacy. Professionals have an obligation to be diligent. In this spirit, the potential juror should answer the summons on the date and time that the summons specifies unless she can show that other matters have a better claim on her time. During the voir dire process, she should listen carefully to the judge’s questions. The empanelled juror should follow the trial closely, take careful notes where allowed, pay careful attention to the judge’s instructions, and participate collaboratively during deliberations—neither monopolizing the conversation nor letting others do so. One interesting problem in the context of diligence is the holdout juror (Abramson 2006). The virtuous juror will not be excessively diligent, but will persist in the name of fairness and truth. How persistent should the juror be if she feels strongly about one side of the jury’s argument, while all the other jurors have the opposing view? Consider the protagonist, “Juror #8,” in the story, 12 Angry Men (Fonda and Lumet 1957). The story begins with #8 as the lone holdout against the conviction of a young man for murdering his father. #8 has not found the evidence convincing beyond a reasonable doubt. By the end of the movie, he has convinced the others of the flaws in the prosecution’s case, and the jurors acquit the defendant. It is interesting to note that while #8 may be a heroic juror, it is not clear that he is constitutionally literate. As noted above, the principle of “beyond a reasonable doubt” is not in the Constitution, although the principle has a long tradition of acceptance in the USA. #8 seems especially concerned to adhere to this principle, although by doing so he also seeks to ensure the defendant a fair trial, which is a constitutional guarantee. Professionals have a duty to be honest and candid. The juror’s obligation to be honest and candid pertains to all the stages in the juror’s professional life-cycle. A person who receives a summons to jury duty and who wishes to be excused should be honest about the reasons why. During the voir dire process the potential juror should respond to all questions as candidly as necessary to help the judge and the adversaries decide whether to disqualify the juror. Also, the jurors should be honest with each other during deliberations. Each juror should feel free to “speak his mind” and should encourage others to do likewise. This will enhance the value of the collective wisdom that justifies the jury system. Doing this well implies


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constitutional literacy, which makes sense given that the juror’s job is a constitutional one. In general the professional obligation of loyalty, especially as it involves avoiding conflicts of interest, does not present a big problem for the juror. Perhaps the juror will answer the summons and deliberate diligently out of patriotic loyalty, but this sense of loyalty is not essential to fulfilling the juror’s task. An effective voir dire process eliminates much of the risk of conflict of interest, and an empanelled juror who discovers such a conflict, real or apparent, may bring it to the attention of the jury foreman or the judge. If the judge decides there is no conflict or that there is no threat to a fair verdict, then the juror need not worry about it any further. Professionals have a duty to be beneficent and nonmaleficent. While beneficence and nonmaleficence are always desirable, the juror’s focus should be on justice. This means giving the defendant what he deserves and, by extension, giving the plaintiff what he deserves. At times, this may be unpleasant or harmful, and someone will walk away the “loser,” but it would be unfair to accuse the juror of acting maleficently if the verdict is just. Justice is a virtue, even if it may not always appear to be. Note that the benefit of treating the defendant justly extends to all whom the justice system affects. Thus, one can act beneficently toward the whole while appearing to harm the individual. This is a classic example of utilitarian decision-making. Note too, that the jurors should treat each other well, avoiding harm where possible. Professionals have discretion and are obliged to use that discretion wisely. Discretion refers both to confidentiality and to making decisions on one’s own authority. During the juror’s tenure, issues of confidentiality may emerge during the trial if the judge orders the jurors not to discuss the case with anyone before deliberations and not to discuss the case with non-jurors during deliberations. Issues of confidentiality also arise after the trial. Jurors in the USA have the right to speak publicly about jury deliberations once the trial is over, unlike their counterparts in Great Britain and Canada (King 2006, 219). Since the jurors’ job is over once the trial has ended, denying them the right to speak about their experience would, arguably, violate their 1st Amendment freedom of speech. This does not settle the question whether it is morally right to speak about the trial after the fact. On the one hand, there is a social benefit to such public discussion. At the least it may promote acceptance of case outcomes and legitimacy of the criminal justice process (King 2006, 219). On the other hand, it would be unfair and possibly harmful to betray


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the confidences of fellow jurors (King 2006, 219). So the virtuous juror will discuss deliberation publicly only to the extent that it is morally neither an excessive nor deficient response to whatever prompted the disclosure. The second meaning of discretion is the professional’s ability to act on her own authority. In this sense, we may raise one of the most interesting issues in jury ethics—jury nullification. This is an apparently constitutionally sound practice that appears to be rather unknown. Jury nullification refers to the jury’s right to render a not guilty verdict even if the prosecution has proved its case. Juries have used it only rarely in the USA (Kleinig and Levine 2006, 9). The rationale for this right is the belief that, in a democracy, the people are the final arbiters of the law. The Constitutions of California, Maryland, and Indiana specifically recognize this right (Scheflin 2006, 143). None of the Constitutions of the other 47 states denies this right, nor does the Constitution of the USA. Constitutional literacy is highly relevant to this fact and to the questions it might provoke. Of course, the legal right of jury nullification does not necessarily make it morally right, so let’s consider some moral pros and cons. Psychologist Norman J. Finkel notes that some critics mistakenly regard jury nullification as a wrong verdict (Finkel 2006). Instead, says Finkel (2006), nullification should be seen as a victory for common-sense justice over “black letter of the law” justice. Besides, he continues: • If we knew the verdict in advance, we would not need a trial. • Since we cannot read minds, only the jurors know what constitutes reasonable doubt for them. • Sometimes a jury must compromise because it doesn’t get the option it wanted. • A jury trial means that the jury has the discretion to convict or acquit. (59) Social scientist Candace McCoy (2006) adds that the jury determines the truth in a trial, and the jury’s interpretation of the proceedings is the final say. Thus, any verdict will be the legal truth, so the jury cannot be wrong even if it nullifies. On the other hand, Kleinig and Levine (2006) liken jury nullification to civil disobedience, and note that nullification allows a jury to acquit a bad person. Thus, even if jury nullification may be good sometimes, it may not always be good.


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McCoy (2006) points out that deontologists and consequentialists would disapprove of jury nullification because it fails to follow universal rules and it may be concerned more with the good of the defendant than the greater good (176). Sociologists Harry Kalven and Hans Zeisel add that a jury is “non-rule minded” since it will follow equity rather than rules (cited in Kleinig and Levine, 2006, ix). If McCoy, Kalven, and Zeisel are correct, then virtue theory is the basic theory that remains to defend jury nullification. Jury nullification is a virtuous act when it is what the defendant deserves and any other option would be excessive or deficient relative to what the defendant deserves. Regarding jury nullification, another question is whether a judge should be required to notify the jury of its right to nullify. So far the courts considering this question have answered in the negative. Moreover, it is common for judges to include the instruction to the jury that if the prosecution has proved its case, the jury must find the defendant guilty. Given the right of nullification, this instruction is false (Dann 2006). According to Kleinig and Levine (2006), however, “such instruction is likely to continue indefinitely” (9). Social psychologist Shari Seidman Diamond (2006) offers an interesting twist by suggesting that attorneys should be able to argue for or against nullification before the jury. Scheflin (2006) adds that there has not been a case in which “counsel’s attempt to argue nullification indirectly resulted in contempt or disciplinary action” (143). So attorney-generated arguments might be a good alternative to requiring a judge’s instructions to permit jury nullification. But where is the Constitution in all of this? A good amount of constitutional literacy may be necessary to answer this question well. Considering the nature and controversy of jury nullification promises to be more fruitful if done with a sufficient degree of constitutional literacy, even if—as in many Supreme Court decisions—there is no unanimous resolution.

PROVISOS This chapter closes with two provisos. First, constitutional literacy is no guarantee of morally good behavior under the aegis of the Constitution. Second, the Constitution from inception through the 27th Amendment has exhibited fragility due in part to its ambiguities and in part to its structure.


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Constitutionally Literate, Ill Behaved One example of ill behavior under the aegis of the Constitution is Chief Justice Roger Taney’s decision in Dred Scott v. Sandford (1857). Dred Scott had been a slave whose owners took him with them to free states and federal territories. Having been in free territory, Scott proclaimed his freedom and took his case to court. In a 7–2 decision, the Court ruled against him, with Justice Taney declaring that African Americans could never be citizens under the US Constitution, and thus had no legal standing in US Courts. This decision was abrogated by the Civil Rights Act of 1866 and the 14th Amendment. It may be tempting to regard Taney’s claim as a sign of constitutional illiteracy, but it is probably more correct to say that while he knew the Constitution well he manipulated it for his own ill-conceived purposes. To be fair, he expressed the hope that his decision would settle growing unrest concerning slavery, so he meant well to this extent. But his disregard for the full personhood of the African Americans was unconscionable. A second example of ill behavior under the aegis of the Constitution is the Westboro Baptist Church, a family-run hate group that uses the 1st Amendment rights to free speech and freedom of religion, to verbally assault gays and lesbians and anyone whom the Church suspects of supporting gays and lesbians, including agents of what the church takes to be a corrupt federal government. Thus, for example, church members have appeared at funerals for fallen military personnel, waving banners that say, “God hates fags!” The church also rails against Jews, Muslims, liberals, and Catholics among others who disagree with the Church’s idiosyncratic take on Christian teaching. In an 8–1 decision the US Supreme Court upheld the church’s right to protest at military funerals, even if the protest caused anguish to the grieving parties and those parties felt the church was invading their privacy (Snyder v. Phelps 2011). This overturned a lower court decision that had found for the family of Marine Lance Corporal Matthew Snyder, at whose funeral the church protested in its usual way. Writing for the Supreme Court majority, Justice John Roberts declared, What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.


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Writing in dissent, Justice Samuel Alito accused the church of brutality and disturbing the peace and wrote, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Two daughters of Fred Phelps, the church’s pastor, Shirley PhelpsRoper and Rebekah Phelps-Davis were attorneys who exhibited strong legal skills in the manipulation of the Constitution to their morally evil ends. In short, constitutional literacy is no guarantee of morally desirable behavior occurring under the aegis of the Constitution. Note that we have not included Kim Davis, the county court clerk from Kentucky and the subject of this chapter’s introduction, as one of our examples here, because we are not sure of the degree to which she is constitutionally literate. If she is constitutionally literate but still refuses on 1st Amendment grounds to fulfill her sworn duty, then this would give us an apt third example of at least attempted morally bad behavior under the aegis of the Constitution. The Constitution Isn’t Perfect The Constitution is an imperfect document. Its immediate beneficiaries were white men, especially slaveholders. Fortunately, relative to its stated purpose in the Preamble, the Constitution has improved with most of its Amendments bringing more and more people under its protection. But there is always room for improvement. Political journalist Yoni Applebaum (2015), senior editor at The Atlantic magazine, raises the possibility that many of the problems in government, which we might blame on constitutional illiteracy, are due to problems in the design of the Constitution itself. Applebaum cites an argument by political theorist Eric Nelson (2014) that many revolutionaries were revolting against British Parliament and a king who was powerless against it. Had the king been more kingly, Nelson suggests, the colonists might have felt less rebellious. But as matters stood, the colonists took over the kingly responsibilities themselves—putting Parliament in its proper place—and replaced the British monarchy with an American “mixed monarchy” in which an uncrowned president had many powers of a monarch: veto power, the power to pick his own cabinet, and the power to make war. Recognizing the fragility of the proposed government, the framers put in fail-safe mechanisms, including the Amendment process and the checks and balances of the three branches on each other.


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This fragility is crucial to Applebaum’s warning that American government will work only if the various players are willing to do their jobs well and to work with each other. If any of these players goes on strike, the Constitution will be of little use. Further, Applebaum suggests, the congressional gridlock of late, accompanied by rigid partisanship, suggests that either government is on strike or that it is close. In short, the Constitution makes dysfunctional government possible as surely as the Constitution provides a blueprint for effective government. Constitutional literacy may not be a perfect antidote to the mess, but it might give government officials a higher sense of purpose than their personal ends. The variety of views of the value of the Constitution itself should come as no surprise. As we have noted, constitutional literacy does not guarantee conformity about the meaning or value of the Constitution. The constitutionally literate, therefore, should be prepared to question the value, not just the meaning, of the document. A notable collection of thoughts to this effect appears in a special issue of Time magazine (1987). Here are a couple of examples: The most obvious weakness of our Constitution is that the economic rights of our citizens are not adequately addressed. Freedom must mean more than the right to vote every four years for a candidate for president. Freedom must also mean the right of a citizen to a decent income, decent shelter, decent educational opportunity and decent retirement benefits. One is not free sleeping out in the streets. One is not free eating cat food to survive. Bernie Sanders, Socialist Mayor of Burlington Vermont (57) I do wish that those at the Constitutional Convention who took a position seeking to abolish slavery would have held out and handled the question then. If they had done that, we could have prevented the War Between the States. George Wallace, former Governor of Alabama (57)

Bernie Sanders eventually became a US Senator and in 2015 ran for nomination in the Democratic presidential primary. George Wallace remained a committed segregationist until late in his life when he expressed regret for his racist past and asked forgiveness from America’s Black citizens (Edwards 2009, 80). He died in 1998. It is fair to ascribe constitutional literacy to both Sanders and Wallace, which makes their contrasting political views all the more remarkable. What they do agree on is that the Constitution has its flaws. One of the signs of constitutional literacy, therefore, is the understanding that the Constitution, although the touchstone for social and political life in the USA, is not sacrosanct.


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SUMMARY Having considered the nature and lack of constitutional literacy in the two previous chapters, we have turned in this chapter to the question, So what? What is the value of constitutional literacy? And we have suggested two sorts of answers, one concerning the practical value of constitutional literacy and the other concerning the moral value. In practical terms, people who invoke the Constitution stand to be more effective and successful in that invocation if they know what they are talking about. Whether the point is to act on the promise to protect, preserve, and defend the Constitution or to fulfill one’s civic duty as a non-sworn stakeholder in constitutional government, constitutional literacy—knowledge of the Constitution sufficient to invoke it properly—is crucial to success. Being in a position to invoke the Constitution, by word or deed, puts the agent in the position of having rights and responsibilities relative to the position. Rights and responsibilities are a moral matter, inviting all concerned to determine whether the agent has fulfilled the responsibilities or properly exercised the rights. Moral matters often invoke references to consequences, rules, duties or some combination of the three. So moral assessment of an agent’s behavior may take into account the consequences of the act: were all rights honored? Is the community better off for the agent’s actions? The assessment may take rules into account: did the agent obey the law? Is the law in question constitutional? And the assessment may take duties into account: given that one should keep one’s promises, has the agent kept that promise when engaging in the behavior in question? Then there is a virtue: a morally bad person may achieve good consequences, obey rules, or fulfill duties. To be a morally good person is to have good character, not just to do good things. To have good character is to have virtue, as opposed to the vice of bad character. To be virtuous is to be able habitually to know the good and do the good, that is, to find habitually the mean between the extremes of deficiency and excess. To be virtuous is habitually to be courageous, just, temperate, and prudent, the four primary components of integrity. The moral value of constitutional literacy then is its essential contribution to the agent’s ability to fulfill constitutional rights or duties. This chapter closed with a reminder that constitutional literacy does not by itself guarantee morally good behavior, nor should we regard the Constitution as sacrosanct even as we recognize its central role in the political and social life of the USA.


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REFERENCES Abramson, Jeffrey. 1994. We the jury: The jury system and the ideal of democracy. Cambridge: Harvard University Press. ———. 2006. Jury deliberation, fair and foul. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 181–208. Boulder: Paradigm. Adler, Jonathan. 2015. Justice Scalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new job. Washington Post, 2 September. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/02/ justice-scalia-explains-why-kim-davis-should-issue-marriage-licenses-to-same-sexcouples-or-find-a-new-job/. Ahranjani, Maryam, Caleb Medearis, and Jeffrey Shook. 2013. Evaluating high school students’ constitutional and civic literacy: A case study of the Washington D.C. chapter of the Marshall-Brennan Constitutional Literacy Project. Denver University Law Review 90(4): 917–937. Applebaum, Yoni. 2015. America’s fragile constitution. The Atlantic, October. http://www.theatlantic.com/magazine/archive/2015/10/our-fragileconstitution/403237/. Aristotle. Nicomachean ethics. Tran. by W. D. Ross. 1941. In The basic works of Aristotle, ed. Richard McKeon, 1105b20–1108b10. New York: Random House. Bayles, Michael. 1988. Professional ethics (2nd ed). Belmont, CA: Wadsworth. Blinder, Alan and Richard Perez-Pena. 2015. Kentucky clerk defies justices on marriages. New York Times, September 2: A1. Bowman, B. 2015. Defiant county clerks standing ground on gay marriage issue. The State Journal (Frankfurt, KY), September 2. http://www.state-journal.com/ latest%20headlines/2015/09/02/defiant-county-clerks-standing-groundon-gay-marriage-issue. Chamberland, Michele. 2015. Thousands rally for clerks denying gay marriage license. WKYT Television [Website], August 22. http://www.wkyt.com/ home/headlines/Thousands-rally-for-clerks-denying-gay-marriagelicenses-322594382.html. Cheves, John. 2015. Rowan county clerk sues Ky. Governor; claims same-sex marriage order violates religious freedom. Lexington (KY) Herald Leader, August 5. http://www.kentucky.com/news/politics-government/article44613963.html. City of Boerne v. Flores, 521 U.S. 507 (1997). Crimmins, Charles. 2013. Teaching the constitution: An American tradition. Denver University Law Review 90(4): 1003–1022. Dann, B.M. 2006. The constitutional and ethical implications of ‘must-find-thedefendant-guilty’ jury instructions. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 93–118. Boulder: Paradigm. Davis, Kim. 2015. Statement of Kentucky clerk Kim Davis. Liberty Counsel [Website], September 1. http://web.archive.org/web/20150908171448/ http:/www.lc.org/index.cfm?PID=14102&AlertID=1965.


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deVogue, Ariane. 2015. Kentucky clerk who won’t issue marriage licenses divorced three times. CNN, September 2. http://www.cnn.com/2015/09/02/politics/kentucky-same-sex-marriage-kim-davis-gay-marriage/index.html. Diamond, S. 2006. When ethics and empirics are entwined: A response to Judge Dann’s nullification proposals. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 119–130. Boulder: Paradigm. Dred Scott v. Sandford, 60 U.S. 393 (1857). Dreisbach, Christopher. 2009. Ethics in criminal justice. New York: McGraw-Hill. Edwards, George. 2009. Government in America: People, politics, and policy. Old Tappan: Pearson Education. Finkel, N. 2006. Juries’ duties, obligations, and rights: The ethical/moral roots of discretion. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 53–82. Boulder: Paradigm. Fonda, Henry (Producer) and Sidney Lumet (Director). 1957. 12 Angry Men. [Motion Picture]. Los Angeles: Orion-Nova Production. Franke, Katherine. 2015. Law professor: Davis can’t evoke religion to deny marriage licenses. Interviewed by Robert Siegel. All things considered. National Public Radio, September 1. http://www.npr.org/2015/09/01/436673707/ law-professor-davis-cant-evoke-religion-to-deny-marriage-licenses. Graham, A. 2015. Court adjourned: Kim Davis jailed for contempt of court. WTVQ.com,September3.http://www.wtvq.com/2015/09/03/court-adjournedkim-davis-jailed-for-contempt-of-court/. Griswold. V. Connecticut 381 U.S. 479 (1965). Hamilton, Alexander. 1788. Federalist No. 78. Independent Journal, June 14. Hampton, Joe. 2015. Letter to the editor. The Tennessean, September 9. http:// www.tennessean.com/story/opinion/readers/2015/09/09/letters-editor-septkim-davis/71973624/. Hanna, Jason, Ed Payne, and Catherine Shoichet. 2015. Kim Davis released, but judge bars her from withholding marriage licenses. CNN.com, September 8. http:// www.cnn.com/2015/09/08/politics/kim-davis-same-sex-marriage-kentucky/. Hobbes, Thomas. 1651. Leviathan. Israel, Josh. 2015. Only 2 republican candidates think Kim Davis needs to quit or follow the law. Thinkprogress.org, September 3. http://thinkprogress.org/election/2015/09/03/3698273/republican-candidates-anti-gay-kentucky-clerk/. Kant, I. 1964. Groundwork for the metaphysics of morals. Trans. by H. J. Paton. New York: Harper & Row. Originally published in 1785. King, N. 2006. Ethics for the ex-juror: Guiding former jurors after the trial. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 219–236. Boulder: Paradigm. Kipnis, Kenneth. 1986. Legal ethics. Englewood Cliffs: Prentice-Hall. Kleinig, John, and James Levine. 2006. Introduction: Ethical foundations of the American criminal injury. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 1–20. Boulder: Paradigm.


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Langbein, John. 1980. Torture and plea bargaining. Public Interest 58: 43–61. Liptak, Adam. 2015. Justice deny bid to resist gay marriage in Kentucky. New York Times, September 1: A11. Loving v. Virginia, 388 U.S. 1 (1967). Massaro, Toni. 1993. Constitutional literacy: A core curriculum for a multicultural nation. Durham: Duke University Press. McCoy, C. 2006. The truth of nullification: A reply to Professor Scheflin. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 173–180. Boulder: Paradigm. Menville, Shayla. 2014. Davis following her mother as county clerk. The Morehead [KY] News, November 7. http://www.themoreheadnews.com/news/local_ news/davis-following-her-mother-as-county-clerk/article_29982458-668911e4-ad6b-172bf9700635.html. Miller v. Davis, Civil Action No. 15-44-DLB 2015 (E.D. Ky. Aug. 22, 2015). Miranda v. Arizona, 384 U.S. 436 (1966). Nelson, Eric. 2014. The royalist revolution: Monarchy and the American founding. Cambridge: Harvard University Press. Obergefell v. Hodges, 576 U.S. (2015) Plyer v. Doe, 457 U.S. 202 (1982). President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society. 2005. Honolulu: University Press of the Pacific. Originally published 1967. Rand, Ayn. 1943. The fountainhead. New York: Bobbs-Merrill. Raskin, Jamin. 2013. The Marshall-Brennan constitutional literacy project: American legal education’s ambitious experiment in democratic constitutionalism. Denver University Law Review 90(4): 833–870, 831. Roe v. Wade, 410 U.S. 113 (1973). Royal, K., and Darra Hoffman. 2013. Impaneled and ineffective: The role of law schools and constitutional literacy programs in effective jury reform. Denver University Law Review 90(4): 959–975. Scheflin, A. 2006. Mercy and morals: The ethics of nullification. In Jury ethics: Juror conduct and jury dynamics, eds. John Kleinig and James Levine, 131–172. Boulder: Paradigm. Schrader, David. 1988. Ethics and the practice of law. Englewood Cliffs: Prentice-Hall. Sidhu, Dawinder. 2013. Civic education as an instrument of social mobility. Denver University Law Review 90(4): 977–1002. Snyder v. Phelps, 562 U.S. 443 (2011). Somin, Ilya. 2004. Political ignorance and the countermajoritarian difficulty: A new perspective on the central obsession of constitutional theory. Iowa Law Review 89: 1289–1368. Terry v. Ohio, 392 U.S. 1 (1968). Time Magazine. 1987. Special issue on the constitution of the United States of America. Time, July 6.


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Tocqueville, Alexis de. 2003. Democracy in America. Trans. by G. Bevan. New York: Penguin. Originally published 1840. Trotter, Griffin. 2007. The ethics of coercion in mass casualty medicine. Baltimore: Johns Hopkins University Press. United States Citizenship and Immigration Services. 2016. Civics practice test. U.S. Department of Homeland Security: Washington, D.C. Volokh, Eugene. 2015. When does your religion legally excuse you from doing your part of your job? Washington Post, September 4. https://www.washingtonpost. com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religionlegally-excuse-you-from-doing-part-of-your-job/. Ward, Paula. 2006. Plead guilty or go on trial? Pittsburgh Post-Gazette, March 26. http://www.post-gazette.com/frontpage/2006/03/27/Plead-guilty-or-goto-trial/stories/200603270155. Waters, Jessica, and Lynn Addington. 2013. The Marshall-Brennan effect: The benefits of teaching constitutional literacy for law students. Denver University Law Review 90(4): 901–915. Whitman, James. 2005.The origins of ‘reasonable doubt.’ Faculty Scholarship Series [Yale University]. Paper 1. http://digitalcommons.law.yale.edu/fss_papers/1. Wong Wing v. U.S., 163 U.S. 228 (1896). Wynn, Mike. 2015. Clerk ‘sought God’ on marriage license issue. The Courier-Journal, July 21. http://www.courier-journal.com/story/news/local/2015/07/21/marriage-license-suit-vs-clerk-back-court/30319757/?from=global&sessionKey=&au tologin=. Yick Wo v. Hopkins, 118 U.S. 356 (1886).


CHAPTER 5

Assessing Constitutional Literacy

INTRODUCTION: THE 27TH AMENDMENT: UNREMARKABLE CONTENT; REMARKABLE BACK STORY The 27th Amendment, the most recent (ratified in 1992) looks unremarkable: No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened

In other words, Congress cannot give itself a raise that takes effect during the session in which Congress approved it. Only subsequent sessions of congress can benefit from the raise. This seems reasonable to the point of raising the question why this Amendment was necessary. Moreover, the Supreme Court has never cited the 27th Amendment in any formal finding (Bernstein 1992). But there is a rich backstory to this Amendment. To begin, the 27th Amendment took over 202 years to ratify. It was originally the second of 12 Amendments that a supportive Congress sent to the states in 1789 for ratification. At the time, the states did not ratify this one or the first of the 12, involving congressional apportionment. The states did ratify the 3rd through 12th Amendments on Congress’s list, giving the USA its Bill of Rights. Note that the 1st Amendment in the ratified Bill of Rights was the third on the list that Congress approved. Thus, any

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reference to the 1st Amendment’s superiority to all others by the privilege of its place is a misunderstanding. When Congress put this Amendment forward in 1789, it was to settle an argument that led first to Article 1, sec. 6, cl. 1 of the Constitution: The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.

Participants in the convention had inherited the debate. As law Professor Richard Bernstein (1992) puts it, The Americans' principal model for a national legislative institution was the British Parliament. From Parliament, Americans derived their ideas of legislative practice and procedure and their ideas about how legislatures should respond to national problems and issues. Even after Congress was set in motion under the Constitution, notable American politicians often had recourse to Parliamentary models and precedents. (500)

According to Bernstein, members of parliament (MPs) received wages from their constituents through the seventeenth century. Then, through a series of regulations, only wealthy candidates or candidates that could get their hands on wealth had a chance to become MPs. This had the effect of candidates buying their positions as MPs—a degree of corruption which led to further misdoings as would-be MPs did what they could to get elected. Mindful of this corruption, colonial governments in America resolved to pay their representatives a fair wage to discourage corrupting temptations. In this spirit, during the drafting of the Constitution, there was more agreement that congressmen should receive a good salary than there was agreement about who should pay them. One relevant comment from the Convention reminds us that the framers were, for the most part, no fan of democracy. Commenting on congressional salaries, Elbridge Gerry claimed that The evils we experience flow from the excesses of democracy [and] one principal evil [of democracy is] the want of due provision for those employed in the administration of Governnt [sic]. It would seem to be a maxim of democracy to starve the public servants. (Cited in Bernstein 1992, 503)


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Ben Franklin offered the only opposition to congressional salaries, arguing that congressional positions should not be appealing for their pay, since this would attract mercenaries rather than patriots. Franklin’s opposition went nowhere (Bernstein 1992, 503, n. 7). Upon agreement that congressmen should receive a salary, the discussion turned to whether that salary should come from the states or from the national treasury. Proponents of state-payment included Oliver Ellsworth of Connecticut and Hugh Williamson of North Carolina. For Ellsworth. [T]he manners of different States were very different in the Stile [sic] of living and in the profits accruing from the exercise of like talents. What would be deemed therefore a reasonable compensation in some States, in others would be very unpopular, and might impede the system of which it made a part. (Cited in Bernstein 1992, 504)

For Williamson, because newer states would be so poor, they would not be able to make sufficient contributions to the national treasury. Thus, if congressional wages came from the national treasury, older states would have to pay “men who would be employed in thwarting their measures & interests” (Cited in Bernstein 1992, 504). Proponents of paying from the national treasury prevailed in the wake of arguments from George Mason and Alexander Hamilton. For Mason, allowing each state to set its congressmen’s salaries would create an inequality that worked against the desired equality in each congressional chamber (Bernstein, 1992, 504). Moreover, the states might pay so little that strong candidates might not run for office. For Hamilton, Those who pay are the masters of those who are paid…. [There is a] difference between the feelings & views of the people & the Governments of the States arising from the personal interest & official inducements which must render the latter unfriendly to the Genl. Govt. (Cited in Bernstein 1992, 505)

The result at the convention was the clause providing that congressmen be paid from the national treasury. The proposed Amendment, which did not make it as part of the Bill of Rights, was meant to clarify the clause. Turning to the Amendment’s history after being left out of the Bill of Rights, note that prior to the 18th Amendment, Prohibition, in 1919, Amendments that Congress sent to the states for ratification had no deadlines.


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In 1939, the US Supreme Court declared that states were free at any time to ratify constitutional Amendments without deadlines (Coleman v. Miller 1939). In 1982, Gregory Watson, an undergraduate student at the University of Texas, Austin, earned a “C” for a paper he wrote on this subject. He argued that since the Amendment had no deadline, states could still ratify it. He also proposed that states do that to add protection against congressional corruption. Sharon Waite, his instructor, assigned a “C” grade, claiming that his argument was “unrealistic” (Frantzich 1999, 1–24, 27). Undaunted, Watson began writing letters to the states that had not ratified the Amendment, making a case for their approval. Six states out of 13 had approved the Amendment in 1789, Kentucky approved it in 1792, Ohio approved it in 1873, and Wyoming approved it in 1978. In the later part of the twentieth century, 38 states (three-fourths of 50) needed to approve an Amendment for it to become law. States began responding positively to Watson’s plea, with Alabama, Missouri, and Michigan, ratifying in quick succession, May 5–7, 1992, and reaching a count of 39 states for the Amendment. At the time, it was assumed that Michigan was the 38th state to approve until Kentucky noted that it had originally approved the Amendment in 1792. This information came to light after Don W. Wilson, Archivist of the USA, certified on May 18, 1992, that the Amendment was ratified. Because Wilson’s decision was recorded in the Federal Register the next day, the official record says Michigan was the 38th state to ratify, when Missouri was in fact. The Archivist was acting within the law, which states that “Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published…” (1 U.S.  Code §106b). However, Senator Robert Byrd (D-W. VA) and Speaker of the House Tom Foley (D-Washington) complained that Congress should have approved the Amendment before Wilson certified its ratification. The complaint gained little traction, since both houses of Congress resolved on May 20, 1992, to recognize the ratification. Seeing how much more interesting the story of the 27th Amendment is when one knows this backstory, the value of constitutional literacy should be all the more obvious, as should be the value of assessing this literacy.


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Knowing this particular story might not make police officers better at their jobs or jurors better at theirs, but as Chap. 4 argues, such information will add to the repertoire of constitutional knowledge that is of general, practical, and moral value to anyone with a stake in the Constitution. Our next question is how to assess that literacy. This chapter examines one approach, to which Chap. 3 introduced us.

THE TEST In 2000, I designed and began teaching an upper-level college course, Applied Ethics, the Constitution, and Leadership, for Johns Hopkins University’s Division of Public Safety Leadership. I have taught this course at least once every year since. Most of the students are law enforcement professionals at the national, state, or local levels. Thus, most of them have sworn an oath to the Constitution. I begin the course with an assessment of how much the participants know about the Constitution and refer back to this assessment as the course progresses. The point of the assessment is to help participants see how much they know about the Constitution and how much more there is to know. In the early years of the course, I used a long list of multiple choice and true-false questions that were not differentiated into categories or listed in any particular order. Over time, I divided the list into eight levels of increasing depth, as Chap. 2 discusses them, to indicate a possible range of constitutional literacy. Originally, I had imagined that the eight levels represented eight levels of difficulty qualitatively, but each level represents an increase in the quantity of knowledge; at any of the eight levels one’s knowledge may be cursory or deep. Thus, one might think of the eight-level model as concentric circles rather than a ladder: to be conversant on all eight levels is to have a high level of literacy quantitatively, but not necessarily qualitatively. For example, Level 8 is Familiarity with the more arcane debates about, for example, the history and nature of constitutional interpretation. At this level, one might know what textualism is without necessarily being able to make a case for or against it. Textualism in the context of this discussion is the view that one ought to interpret the Constitution by being faithful to its words. This is a form of originalism, but it differs from another form—intentionalism—which looks for the meaning behind the words. Constitutional textualism is akin to biblical fundamentalism, which takes the Bible at its word, without presuming to read too much into it. One might know the basics of textualism or fundamentalism without being able to make a good argument for


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or against either. Or one might have a scholarly understanding of one or both, with the ability to discuss critically the foundations of each theory and the arguments for or against them. Or someone may have a level of knowledge about either or both that falls somewhere in-between a passing acquaintance and a scholarly understanding. All of this would take place on Level 8, as I have conceived the model. Thus, at each level, it is possible to distinguish at least three degrees of difficulty, easy, medium, and hard. These details emerged as I compared the numbers of correct and incorrect answers. Initially, I took my next step to be a weighting of these answers, first to see whether the set of eight categories was legitimate for research purposes, and second, to see which questions belong in which level of difficulty. Prior to developing such an instrument, however, I had occasion, through conversation with participants and experts in developing research instruments of the sort that would be useful to my study, to reconsider organization of the questions. This resulted in a more compact structure and a more elaborate system of distinctions, which might prove more useful than the eight-level approach in determining constitutional literacy. As Chap. 3 notes, this second approach starts with two basic pairs of distinctions: historical v. thematic, and internal v. external. Anecdotally, it appears that people who invoke the Constitution are often more comfortable speaking in one of these four areas than in the other three. Thus, a test for constitutional literacy that incorporates this model might be better at pinpointing for each individual where her strengths and weaknesses lie. This pair of distinctions yields four broad categories: internal themes, internal history, external themes, and external history. Within each category, the questions may be easy, of medium difficulty, or difficult. The multiple choice/true-false exam on which this chapter is based consists of 271 questions ranging in difficulty as follows: • EASY: Assumes a complete reading of the Constitution or basic education about the Constitution in primary or secondary education. No interpretation of the Constitution or related texts is necessary. • MEDIUM: Requires an especially close reading of the Constitution or related texts, some interpretation of those texts, and/or some research into the historical, philosophical, or political context of those texts.


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• DIFFICULT: Requires close reading, interpretation, or research to a higher degree than the questions of medium difficulty. One way to distinguish among these three is to tie expectations of what one should know to the assessment of someone’s constitutional literacy. “Easy” suggests knowledge necessary to basic constitutional literacy; “medium” suggests knowledge necessary to a moderately high degree of constitutional literacy; and “difficult” suggests knowledge necessary to a high level of constitutional literacy. Note that “necessary,” is not the same as “sufficient.” For example, sufficient proof of a high degree of constitutional literacy would include a person’s being able to answer most of the difficult questions correctly. At this point we are speaking in qualitative terms; quantifying these values is another task altogether. The questions are organized according to whether they emphasize a theme or history, and whether they pertain to the Constitution text directly (“internally”) or indirectly (“externally”). The degree of difficulty is confirmed generally by the percentage of test takers who answered the questions correctly. However, some questions appear to have been less difficult to answer than I anticipated. Future fine-tuning of this project may lead to different designations for some of the questions—or different ways of stating the questions. Note that in some sections of the test, the set of questions may not reflect all three levels of difficulty. The following discussion of each of these categories and subcategories provides the opportunity to go into detail about information of significance to the constitutionally literate, as the examples below suggest. Recall from Chap. 3 an outline of the test. Category I: Internal themes • Distinguishing the Constitution from Other Texts: • Requiring Reading the Constitution Only • Requiring Extra Thought beyond a Reading of the Constitution, such as Interpretation or Research Category II: Internal history • Pre-Ratification (before 1787) • Post-Ratification (after 1787)


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Category III: External Themes • Directly Relevant to the Constitution • Indirectly Relevant to the Constitution Category IV: External history • Pre-Ratification • Post-Ratification – Directly Relevant to the Constitution – Indirectly Relevant to the Constitution In Chap. 3, this outline is the foundation of one argument for a pervasive lack of constitutional literacy among sworn law enforcement professionals. In this chapter this same outline serves as the foundation for discussing one way to assess constitutional literacy. In Chap. 6, this outline serves as a foundation for thinking about how to promote and improve constitutional literacy. To see how this outline might provide a useful foundation for assessing constitutional literacy, let’s look at the categories (internal themes, internal history, external themes, and external history) and their subcategories more closely, using sample questions to illustrate and giving background information relevant to the question. For each sample question below, its number in the list of samples is followed by my anticipation of the question’s difficulty (easy, medium, or difficult). Next comes the question and the correct answer. This is followed by the number of correct answers, the number of students who attempted to answer the question, the resultant percentage of correct answers among those who responded, and the percentage of correct answers if one takes into account all 90 students who received the test, including those who chose not to answer the given question. Finally, in most cases, comes background information relevant to the question. This will help in assessing how well students did in answering the question relative to how well one would have expected them to do. It will also demonstrate how one might follow up on a question after rendering the assessment. Category I: Internal Themes “Internal” refers to the Constitution itself—its contents; implications; and history, both pre- and post-ratification. “Themes” refers to the contents and implications of the Constitution itself, that is, internal themes, or of texts and data that are directly or indirectly related to the Constitution,


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that is external themes. External history refers to historical data and events that relate directly to the Constitution or indirectly to the Constitution, but of which the Constitution is not the central subject. There are at least three levels of complexity within the category of Internal Themes. First, is distinguishing the Constitution from other texts. This has three parts: recognizing a selection from the Constitution, knowing that a selected text is not from the Constitution, and knowing what the text is if it is not from the Constitution. This book opened with examples of sworn officials confusing the Declaration of Independence and the Constitution. This suggests a low level of constitutional literacy, which is remarkable for sworn officials, since they should be able to identify the contents of the Constitution and recognize the Declaration of Independence as a separate text. . On the other hand, this chapter opened with the 27th Amendment. This is so rarely discussed that failure to recognize it on sight would not necessarily prove a troublesome degree of constitutional illiteracy. Distinguishing the Constitution from Other Texts Example 1 (Easy): From what document is the following: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” (a) (b) (c) (d)

Declaration of Independence Articles of Confederation The New Jersey Plan U.S. Constitution

The answer is d, (Art. 3, sec. 3). Correct answers

Respondents

% Correct

% Correct of all 90 students

70

90

78

78

It is common knowledge among the sworn professionals with whom I work that treason is the only crime that the Constitution defines and for which it sets a standard. Thus, I would have expected that more than 78 % of the respondents would have answered this question correctly.


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Background information: in 1787 England, there were seven kinds of “high” treason—that is, treason against the sovereign. Petty treason referred to certain acts of a subordinate against a superior. High treason included wishing or imagining the death of the king and his heirs; “violating” the king’s wife, eldest unmarried daughter, or daughter-in-law of the heir to the throne; waging war against the king; giving the king’s enemies aid and comfort; counterfeiting the King’s seal; counterfeiting the king’s money; and killing the chancellor, treasurer, or justices (Blackstone 1840, 54–60). The Constitution preserved two of these: waging war against the USA and giving the enemy aid and comfort. Waging or “levying” war, requires a gathering of people “for the treasonable purpose, to constitute a levying of war” (Ex Parte Bollman 1807). The requirement of two witnesses, was taken from England’s Treason Act of 1695, which had preserved this provision from older Treason Acts. In the 1940s, the US Supreme Court affirmed this requirement in cases of actual treason (Cramer v. United States 1945), but not for proving intent (Haupt v. United States 1947). James Madison (1788a) provides a clue as to why the Constitution makes a point of defining this crime, but no other. In Federalist No. 43 he writes As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

Example 2 (medium): From what document is the following? The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. (a) Declaration of Independence (b) Articles of Confederation


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(c) The Massachusetts Bay Colony Bill of Rights (d) U.S. Constitution The correct answer is d, (16th Amendment). Correct answers

Respondents

%Correct

% Correct of all 90 students

70

90

78

78

Background information: when James Madison, Alexander Hamilton, and others pushed for a convention to fix the shortcomings of the Articles of Convention, they had two primary concerns. First, there was a need for a national military to provide security for all of the states, rather than relying on each state to muster a militia as needed. Second, there was a need for a national system of collecting revenue, primarily through taxes, to pay for the military and pay the nation’s debts. In short, one of the two major reasons for replacing the Articles of Confederation with the US Constitution was to give the federal government the power to collect taxes. Article I sec. 8, cl. 1 gives this power. Article I, sec. 9, cl. 4 limits this power: No capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed be taken.

The distinction between a direct tax and an indirect tax is important here. According to the US Internal Revenue Service (2016), Taxes can be either direct or indirect. A direct tax is one that the taxpayer pays directly to the government. These taxes cannot be shifted to others. A homeowner pays personal property taxes directly to the government. A family pays its own federal income taxes. An indirect tax can be passed on to another person or group. A business may recover the cost of the taxes it pays by charging higher prices to customers. A tax shift occurs when the business shifts its taxes to others.

The Constitution allowed the federal government to impose direct taxes only on states according to their population. For example, if New York had 20 % of the national population, New York had to pay 20 % of the taxes necessary to fund federal government initiatives. At this point the


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government could not impose direct taxes on individuals. This was the case until 1894. In 1894, Congress passed the Revenue Act, also known as the WilsonGorman Tariff, which included a 2 % income tax on income over $4000 (Ch. 349 §73, 28 Stat. 570, August 27, 1894). This was the first national income tax imposed during peace time (Henchman 2013). Obeying the law, Farmers Loan and Trust began paying tax on income it paid in wages and dividends, and reporting this to the federal government. Charles Pollock, a stockholder in the company, sued on the ground that the income tax was a direct tax which could not be imposed on individuals (Pollock v. Farmers’ Loan & Trust Company 1895). In a 5–4 decision the US Supreme Court agreed, thus rendering the income tax unconstitutional (Henchman 2013). Proponents of a federal income tax prevailed with the 16th Amendment, giving the US Congress the power to impose an income tax on individuals. Note that the wording of the Amendment does not limit these taxes to collecting revenue. Congress may also use this power as a means of promoting federal policies or discouraging certain behaviors. A recent and controversial example of this is the US Supreme Court’s decision in National Federation of Independent Business v. Sebelius (2012). The case was a challenge to the Affordable Health Care for America Act (2009), also known as “Obamacare,” which included a tax penalty on any tax payer who did not have health insurance by 2014. In a 5–4 decision the Court declared the provision Constitutional over objections that Congress did not have the authority to compel people to buy insurance. Example 3 (Difficult): From what document is the following? “As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquillity of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” (a) (b) (c) (d)

Treaty of Paris Treaty with the Bey of Tripoli Articles of Confederation Constitution of the United States


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The correct answer is b. The passage is from Article 11 of the Treaty with the Bey of Tripoli. Correct answers

Respondents

%Correct

% Correct of all 90 students

14

89

16

16

To be fair, the main purpose of this question is to decide whether the passage comes from the Constitution. Seventy-four out of 89–83 %–indicated correctly that the passage is not from the Constitution. Background information: note that the Treaty with the Bey of Tripoli makes a legally binding statement that America is not a Christian nation. Still the question whether America is a Christian nation persists. In 1797, Congress ratified the Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary (United States 1797). Article 11 of the treaty is the passage just quoted. Since ratified US treaties have the force of law and since this law has never been abrogated, the legal position stands. Some have argued that this legal point changed with the US Supreme Court decision in Church of the Holy Trinity v. United States (1892). In 1880, Congress passed a law prohibiting “the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories, and the District of Columbia” (23 Stat. 332, c. 164). In 1887, Holy Trinity Episcopal Church in New York hired E. Walpole Warren, a British citizen, to be its rector. The US government tried to prevent the appointment under the 1880 act, and the church sued on the grounds of its 1st Amendment freedom of religion. The Court found for the church. In delivering the decision of the court Justice Brewer cited several court cases and common practices that point to America’s being a Christian nation and he concluded: These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.

Some have suggested that this in effect settles the legal matter in favor of those who claim that America is a Christian nation. But note that the decision in this case, was that Holy Trinity had the right to hire whom it wanted to be its pastor, whether from the USA or not. The decision was not that Article 11 of the Treaty with the Bey of Tripoli had been overruled.


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Example 4 (difficult): From what document is the following? “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” (a) (b) (c) (d)

Code of Hammurabi Magna Carta Declaration of Independence US Constitution

The correct answer is b: the passage comes from clause 39 of the Magna Carta (1215). Correct answers

Respondents

%Correct

% Correct of all 90 students

37

86

43

41

Sixty-two respondents out of 86–72 % –correctly indicated that the passage is not from the Constitution. Background information: a careful reader of the Constitution would remember seeing the word “disseised,” if it had appeared there. Thus, it should be apparent to someone with a modest level of constitutional literacy that this passage is not from the Constitution. That the passage comes from the Magna Carta will be less obvious. The word “disseise,” also spelled “disseize,” means to remove people wrongfully from their property. Note that this passage allows such an act only by “lawful judgment of his peers or by the law of the land.” This passage comes much closer to guaranteeing the accused a trial by a jury of one’s peers than one finds in the Constitution’s 6th Amendment, which says, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed… (My emphasis)

Example 5 (Difficult): From which document is the following? “If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his


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decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgment.” (a) (b) (c) (d)

Code of Hammurabi Magna Carta Declaration of Independence U.S. Constitution

The correct answer is a: it is Law 5 (out of 282 laws) from the Code of Hammurabi, c. 1754 BCE. Correct answers

Respondents

%Correct

% Correct of all 90 students

34

86

40

38

Seventy-six out of 86 respondents—88 %– indicated correctly that this passage is not from the Constitution. Although this code is almost 3800 years old, its language, in translation, sounds legally modern enough to be from the Constitution. This reflects the significance of ancient precedents of the US Constitution, about which more is said below. Requiring Reading the Constitution Only A second level of complexity within the category of internal themes requires reading the Constitution only, with no comparison to other texts. For example, having read the Constitution, a person of moderate constitutional literacy should be able to recognize the 27th Amendment, the subject of this chapter’s introduction, even if, absent any indicator, the person does not know what part of the Constitution the selection is. Example 6 (Easy): Which amendment guarantees the right of the accused to a speedy trial? (a) (b) (c) (d)

5 6 7 8


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The correct answer is b, The 6th Amendment. Correct answers

Respondents

%Correct

% Correct of all 90 students

38

89

43

42

Given the importance of the 6th Amendment to law enforcement, it is surprising how few of the respondents answered this question correctly. Almost as surprising was that 40 out of 89 respondents—45 %–answered a, the 5th Amendment. Background information: here is the text of the 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The right to a speedy trial, which the 6th Amendment guarantees, has a long pedigree. In 1166, Henry II of England established a set of civil and criminal laws, known as the Azzize of Clarendon. In it he included this provision: 4. And when a robber or murderer or thief or the receivers of them be arrested … if the justices are not to come quite soon into the county where the arrests have been made, let the sheriffs send word … to one of the nearer justices … and the justices shall send back word … where they wish to have the men brought before them; and the sheriffs shall bring them before the justices … there before the justices let them make their law. (Cited in Shestokas 2014)

The Magna Carta, 49 years later, agreed: To no one will we [King John] sell, to no one will we refuse or delay, right or justice (Provision 40; cited in Shestokas 2014).

English Jurist Sir Edward Coke, best known for his Institutes of the Lawes of England (1628–1644; 4 volumes) and law reports (13 parts), reporting on cases in which he had participated or in which he had an interest, declared that


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The law of England is a law of mercie…for three causes. First, that the innocent shall not be worn and wasted by long imprisonment, but (as hereby and by the statute of the Magna Charta appeareth) speedily come to trial… (cited in Herman 2006, 162)

Chief Justice Earl Warren cited Coke favorably on this point in Klopfer v. North Carolina (1967), as did Justice John Paul Stevens in his dissent in Moody v. Daggett (1976). Section 8 of The Virginia Declaration of Rights (1776), presaging the 6th Amendment, says That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty… (My emphasis)

While the accused is the most obvious beneficiary of a speedy trial, the accusers benefit by avoiding losses that can occur over time, such as loss of witnesses or loss of accurate memories of witnesses, and society benefits from avoiding monetary and psychological costs associated with a drawn out trial. Note that the documents cited so far do not define “speedy,” nor does the 6th Amendment. In 1972 The US Supreme Court addressed this in Barker v. Wingo (1972) holding that the precise meaning of “speedy” depended on the case, but that four factors should be applied: How long was the delay? Why did the delay occur? When and how did the defendant assert his right to a speedy trial? Whether the delay has prejudiced the court against the defendant

Dissatisfied with the Court’s failure to define “speedy” more definitively, Congress enacted the Speedy Trial Act of 1974 (88 Stat. 2080). According to this statute, the prosecution must file information or an indictment within 30 days of the arrest, and the trial must begin within 70 days after that unless the defendant appeared before an officer of the court later than 30 days after the indictment, in which case the 70-day clock starts then. This has not prevented appeals based on lack of speedy trial. In Zedner v. United States (2006), a unanimous Supreme Court held that a defendant cannot waive his right to a speedy trial. But also see, for


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example, Boyer v. Louisiana (2013) in which the court decided 5–4 not to hear the case of a defendant whose trial was delayed for five years because the State could not afford to hire a public defender for him. This had the effect of denying Boyer his right to a speedy trial. Example 7 (Easy): Which Article is about the executive branch? (a) (b) (c) (d)

I II III V

The correct answer is b, Article II. Correct answers

Respondents

%Correct

% Correct of all 90 students

37

87

43

41 %

Background information: the first three Articles of the Constitution pertain, in descending order of importance, to the legislative branch, the executive branch, and the judicial branch. The relative importance is suggested at least by the length of the Article. Article 1: 2267 words, 10 sections Article II: 1025 words, 4 sections Article III: 377 words, 3 sections This imbalance of importance is borne out by the imbalance of power. Congress can fire its own, fire the president (through impeachment and removal), and fire justices (through impeachment and removal). Congress can set its own salary, as the opening of this chapter discusses; as well as the salary of the president and the Supreme Court justices. The President cannot fire senators, representatives, or justices. Nor can the President appoint his cabinet or justices without congressional consent. And constitutionally, justices have the least power of all. They cannot hire or fire themselves, the President, or any member of congress. They cannot set their own salaries. And they cannot enforce their own decisions without help from the congress and executive branches. James Madison (1788b) confirms this in Federalist 51 when, writing on “the Proper Checks and Balances between the Different Departments,” he says


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But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

Example 8 (Easy): Which amendment gives women the right to vote? (a) (b) (c) (d)

15 17 19 21

The correct answer is c, the 19th Amendment. Correct answers

Respondents

%Correct

% Correct of all 90 students

35

88

40

39

This score suggests either that I was wrong to regard the question as easy or that lack of constitutional literacy among the respondents is higher than one would hope. Background information: here is the text of the 19th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.


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The original Constitution did not list a right to vote and it allowed each state to determine the voting qualifications of its residents. Several Amendments have made it more difficult for states to prevent people from voting. The 15th Amendment prohibits states from preventing voting on the basis of “race, color, or pervious condition of servitude.” The 17th Amendment requires states to select their US Senators by popular vote. Prior to this Amendment, state legislatures selected their US Senators. The 19th Amendment, as we have just seen, denies states the right to prevent voting “on account of sex.” The 23rd Amendment gives the District of Columbia the right to have electors in the presidential election. The 24th Amendment prohibits states from imposing a poll tax, which had made it difficult for poor people to vote. And the 26th Amendment prevents states from denying the vote to anyone 18 or over on account of age. Moreover, the Voting Rights Act of 1965, followed by five legislative Amendments through 2006, made it even more difficult for states to discriminate against voters on the basis of race or ethnicity. Thus, over time, states have become less free to determine who among their residents is eligible to vote. Note that while the 19th Amendment prohibited states from preventing voting on the basis of gender, some states permitted women to vote before the 19th Amendment was ratified in 1920 (Kelly 2013). From 1787 to 1807 New Jersey allowed women to vote (Heritage Foundation 2016). According to the National Constitution Center (2006) • Between 1890 and 1918, 15 states made it legal for women to vote in any election in which men could vote. • Between 1913 and 1919, 12 additional states permitted women to vote in presidential elections. • Twenty-one states allowed women to vote only after the 19th Amendment was ratified. Example 9 (Medium): T/F. Originally there was to be one representative for every 30,000 people represented. This is true according to Article 1, sec. 2. Correct answers

Respondents

%Correct

% Correct of all 90 students

57

83

69

63


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139

Background information: here is the text: The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Since Rhode Island did not send a delegate to the Convention, we ought not to be surprised that the attendees were only so generous. In 1787, C. C. Pinckney, a South Carolina delegate to the Constitutional convention, estimated that the US population –for the purposes of determining the number of US representatives–was approximately 2.6 million. Thus, the House of Representatives should have approximately 85 members. In 1929, the US population was approximately 122 million, which would have required 4066 US Representatives under the original Constitution. But there were 435 Representatives at the time and Congress decided to cap the number at 435, resulting in the Permanent Apportionment Act of 1929 (ch. 28, 46 Stat. 21, 2 U.S.C. § 2a; History, Art & Archives 2016). Had the original formula stood, the 113th Congress (2013–2015) would have 10,667 members representing 320 million people! (United States Census Bureau 2016). Example 10 (Medium): Here is another question I anticipated being of medium difficulty to answer. Which amendment establishes an income tax without apportionment? (a) (b) (c) (d)

12 14 16 18

The correct answer is c: the 16th Amendment. Correct answers

Respondents

%Correct

% Correct of all 90 students

39

83

47

43


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This is the second time that the 16th Amendment is the subject of the question. Earlier it appeared in the context of deciding whether a passage was from the Constitution or some other document. Seventy-eight percent of the respondents correctly identified it as being in the Constitution. Unless the respondent is guessing, giving the correct answer in the earlier case requires only having read the Constitution cursorily, without knowing what the words mean. In the present case, asking the respondent to identify the specific Amendment requires a more careful reading and, perhaps, some memorization. One could make the question even more difficult by asking, for example, what precisely the Amendment means, what element from the Constitution is being amended, or what the content of the Amendment is. Requiring Extra Thought Beyond a Reading of the Constitution, Such as Interpretation or Research The third level of complexity within the category of internal themes requires extra thought beyond a mere reading of the Constitution, such as interpretation or research. Why, for example, does the Constitution call for members of Congress to be paid from the national treasury, rather than from the states—a subject that appears in the opening of this chapter? There are no easy questions in this category, since knowing the answers requires going above and beyond merely reading the Constitution. Example 11 (Medium): T/F. The Constitution states that a suspect is innocent until proven guilty. This is false. Correct answers

Respondents

%Correct

% Correct of all 90 students

42

79

53

47

Background information: the Constitution does not explicitly recognize a right to the presumption of innocence nor does it say anywhere that the defendant is innocent until proven guilty. The principle is an old one, and there are several places in the Constitution that imply the principle. It was a principle in Ancient Roman Law (Watson 1998). Also, Article Nine of the French Declaration of the Rights of Man (1789), says


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As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner’s person shall be severely repressed by law.

In 1895, the US Supreme Court established the principle explicitly in deciding Coffin v. U.S. (1895). Article 11, sec. 1, of the Universal Declaration of Human Rights (United Nations 1948), says Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Elements of the Constitution that allegedly imply this presumption include the Due Process clauses of the 5th and 14th Amendment, and the general tenor of the 6th Amendment. Whether this implication holds today is a matter of debate (Baradaran 2011). Example 12 (Medium): T/F. The Constitution guarantees a defendant trial by a jury of one’s peers. This is false. Correct answers

Respondents

%Correct

% Correct of all 90 students

20

79

25

22

Recall that the Magna Carta, provision #39, comes closer to requiring a jury of one’s peers, than does the US Constitution. Recall too that the Virginia Declaration of Rights (1776) says that a defendant in a criminal trial is to be judged by his peers. But the closest the Constitution comes is in requiring “an impartial jury of the State and jurisdiction wherein the crime shall have been committed” (Amend. 6). Example 13 (Medium): T/F/. The Chief Justice is Chief Justice of the United States, not just the Supreme Court. This is true. It follows from Article VI, par. 2 of the Constitution—the “Supremacy Clause.”


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Correct answers

Respondents

% Correct

% Correct of all 90 students

44

74

60

49

Background information: here is the relevant text: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme law of the Land; and the Judges in each state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (My emphasis)

While this allows the US Congress to require state judges to enforce federal law, the US Supreme Court has decided, in Printz v. The United States (1997), that Congress may not order other state officials to enforce federal law. Justice John Paul Stevens (2014) describes—and laments—this decision, as creating “The anti-commandeering rule—a rule that prohibits Congress from requiring state officials to perform federal duties” (17). Arguing that the federal government is in some cases more capable of legislating for the good of all than individual states may be, Stevens (2014) proposes a constitutional Amendment that adds “and other public officials” to the Supremacy clause (29). Example 14 (Difficult): T/F. Vacancies in the House can be filled by the governor. This is false. According to Article 1, sec. 1, vacancies in the House can be filled only by special election. Correct answers

Respondents

%Correct

% Correct of all 90 students

24

70

34

27

Note that the Constitution allows governors to fill vacancies in the US Senate. Example 15 (Difficult): Once inside the USA both legal and illegal immigrants have a right to due process


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This is true, according to the Supreme Court decision in Zadrydas v. Davis (2001). Correct answers

Respondents

%Correct

% Correct of all 90 students

49

60

82

49

Background information: Amendment V says in part No person shall be … deprived of life, liberty, or property, without due process of law… (My emphases)

Amendment 14 says in part nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (My emphases)

In neither case does the Constitution limit the right of due process to a select group of people, such as citizens and non-citizens who are in the US legally. Both Amendments include all persons under US jurisdiction (Cole 2003). Category II: Internal History The category of internal history asks questions about history in which the Constitution is at the center of the answer. It is helpful to divide this history into pre-ratification, for example, Congress proposing one of 12 initial Amendments that was not ratified until 1992; and post-ratification, for example, the ratification of the 27th Amendment thanks to the persistence of a student whose initial effort earned him a course grade of C. Pre-ratification Example 16 (Easy): T/F. Thomas Jefferson signed the Constitution. This is false.


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Correct answers

Respondents

%Correct

% Correct of all 90 students

40

78

51

44

Background information: Thomas Jefferson was the US Minister to France during the Constitutional Convention. He corresponded with fellow statesmen and convention delegates about the proceedings during and after the convention. In a letter to John Adams7, Jefferson (1787a) referred to the delegates as “an assembly of demi-gods.” John Adams was the US Minister to England at the time, so he too missed the convention. In a letter to James Madison, Jefferson (1787b) objected to the absence of a bill of rights. He would write many letters on these subjects during the ratification process, but he was not directly involved in the writing of the Bill of Rights either (Bloom 1986). Example 17 (Medium): T/F. Ben Franklin signed both the Declaration of Independence and the Constitution. This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

56

79

71

62

Background information: Ben Franklin signed four documents of especially historical importance to the USA: the Declaration of Independence (1776), the Franco-American Alliance (1778), the Treaty of Paris (1783), and The US Constitution (1787) (Benton 2013). At the Constitutional Convention, 81-year old Franklin was a member of a small minority speaking out against slavery (Schmoop Editorial Team 2008). As noted above, he also spoke out against paying legislators. On June 28, 1787, he gave a speech proposing that each session at the convention begin with a prayer (Franklin 1787a). On the last day of the Convention, September 17, 1787, Franklin (1787b) was asked to give a speech. Too weak to read it himself, he asked a fellow Pennsylvania delegate, James Wilson, to read it. It is worth reading in its entirety:


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Mr. President I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said “I don’t know how it happens, Sister but I meet with no body but myself, that’s always in the right — Il n’y a que moi qui a toujours raison.” In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary


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effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered.

Example 18 (Medium): Why does Article I recognize each slave as only 3/5 of a person? (a) Because slaves were denied citizenship. (b) Because slaves were ineligible to vote. (c) As a compromise between Massachusetts’ call to treat slaves as a whole people and North Carolina’s call to treat slaves solely as property. (d) Because if slaves were treated solely as property, then the slave states would have insufficient representation in the House of Representatives. The correct answer is d. Correct answers

Respondents

%Correct

% Correct of all 90 students

30

59

51

33

Background information: the Three-Fifths Compromise is found in Article 1, sec. 2, par. 3 of the Constitution: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The Constitution permitted states to send one representative to congress for every 30,000 people represented. Also, the Constitution permitted the federal government to tax states only according to their population.


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If slaves were counted as property and not as persons, this would severely limit the number of representatives of the slave-holding states and the number of electors those states would have in the presidential election. Treating slaves solely as property would also cost the federal government a lot of tax revenue. For purposes of representation, the slave states were happy to count slaves fully as persons. Many northerners felt it was wrong to count slaves as persons, since they were unable to vote. The Three-Fifths Compromise, at James Madison’s urging, was a point at which all could agree, after considering 0 %, 100 %, 50 % (Benjamin Harris of Virginia), and 75 % (several New Englanders) (Jensen 2005; Wills 2003, 51–53). Alexander Hamilton (1788b) challenged the morality of this compromise in a post-convention speech: Much has been said of the impropriety of representing men who have no will of their own…. They are men, though degraded to the condition of slavery. They are persons known to the municipal laws of the states which they inhabit, as well as to the laws of nature. But representation and taxation go together…. Would it be just to impose a singular burden, without conferring some adequate advantage?

Also James Madison (1788c) writing as Publius in Federalist 54 offered insight into the pragmatic struggle this issue caused: In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property.

Example 19 (Difficult): T/F. Baptists were a leading voice in the separation of church and state during the drafting of the Constitution.


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This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

41

57

72

46

Background information: during the Constitutional Convention and the process of ratification, religious leaders led the fight against mixing government with religion. This resistance is captured clearly in a letter to James Madison from Baptist preacher John Leland (1788): Sir According to your Request, I have sent you my objections to the Federal Constitution, which are as follows: 1st. There is no Bill of Rights, whenever a Number of men enter into a state of Society, a Number of individual Rights must be given up to Society, but there should be a memorial of those not surrendered, otherwise every natural & domestic Right becomes alienable, which raises Tyranny at once, and this is as necessary in one form of Government as in another. 2nd. There is a Contradiction in the Constitution, we are first inform’d that all Legislative Powers therein granted shall be Vested in a Congress composed of two houses, and yet afterwards all the power that lies between a majority and two thirds, which is one Sixth part, is taken from these two Houses, and given to one man, who is not only chosen two Removes from the people, but also the head of the executive Department. 3rd. The House of Representatives is the only free, direct Representation of the body of the people, and yet in Treaties which are to be some of the Supreme Laws of the Land, this House has no voice. 4th. The Time place and Manner of chusing the members of the Lower house is intirely at the Mercy of Congress, if they Appoint Pipin or Japan, or their ten Miles Square for the place, no man can help it. How can Congress guarantee to each State a Republican form of government, when every principle of Republicanism is sapped. 5th. The Senators are chosen for Six years, and when they are once Chosen, they are impeachable to nun but themselves, No Counterprize is left in the hands of the People, or even in Legislative Bodys to check them, Vote as they will, there they set, paying themselves at Pleasure. 6th. I utterly oppose any Division in a Legislative Body, the more Houses, the more parties, the more they are Divided, the more the Wisdom is Scattered, sometimes one house may prevent the error of another and the same stands true of twenty Houses. But the question is, whether they do more good than harm, the Business is certainly thereby retarded and the Experience inhanced.


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7th. We are not informed whether Votes in all cases in the Lower house are to be by Members or by States,—I Question whether a man could find out the Riddle by plowing, with Sampsons Heiffers, if each Member is not to have a Vote, who are they to be chosen according to Numbers of Inhabitants, and why should Virginia be at ten times the Expense of Delaware for the same Powers, if the Votes are always to be by States, why is it not Expressed as in the choice of a President, in certain cases, If each Member is to have a Vote Why is it Expressed concerning Senators, and not concerning Representatives, this blank appears to be designed, to encourage the Small States with hopes of Equality, and the Large States with hopes of Superiority. 8ly. We have no assurance that the Liberty of the press will be allowed under this Constitution. 9ly. We have always been taught that it was dangerous mixing the Legislative and Executive Powers together in the same body of People, but in this Constitution we are taught better, or worse. 10ly. What is clearest of all—Religious Liberty, is not sufficiently secured, No Religious test is Required as a qualification to fill any office under the United States, but if a Majority of Congress with the President favor one System more then another, they may oblige all others to pay to the support of their System as much as they please, and if Oppression does not ensue, it will be owing to the Mildness of Administration and not to any Constitutional defence, and of the Manners of People are so far Corrupted, that they cannot live by Republican principles, it is Very Dangerous leaving Religious Liberty at their Mercy.

In a letter to the Danbury Baptist Association, January 1, 1802, Thomas Jefferson (1802) reaffirmed the commitment to keeping government and religion separate. To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut. Gentlemen The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing. Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship,


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that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem. Th Jefferson Jan. 1.1802

In discussing, Example 3, regarding the Treaty with the Bey of Tripoli, we noted the ongoing debate about whether America is a Christian nation. The Treaty says no, but this has not settled the debate. That there was conscious effort to keep religion out of the Constitution and, concomitantly, to keep the government out of religion, adds another premise to the argument that America is not a Christian nation—at least not constitutionally. Post-ratification Example 20 (Medium): T/F. The 12th Amendment was prompted by the development of political parties. This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

42

55

76

47

Background information: here is paragraph 1 of the 12th Amendment, ratified June 15, 1804 The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons


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voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

In Washington’s (1796) Farewell Address, which he published at the end of his presidency, he pleaded with the nation not to split into parties, since this would give factions too much political power and party members’ first loyalty would be to the party rather than to the country. But two parties already existed in effect: those who regarded the nation as the fundamental political unit, to which the states were subordinate, and those who regarded each state as the fundamental political unit whose interests the nation was supposed to serve. The first group called itself the Federalist Party. This was a strategic move, since people opposed to them were often referred to as anti-federalists, rather than pro-anything. The second group, the party of states’ rights, called itself the Democratic—Republican Party. At the time of the 12th Amendment’s ratification, John Adams, was a central representative of the Federalist Party and Thomas Jefferson was the central representative of the Democratic—Republican Party. The Constitution had not considered political parties when it set the rules for presidential elections. Article II, sec. 1, cl. 3, required each elector to vote for two people. If one person received a majority of the votes, that person became president and the first runner up became Vice-President. If there was a tie for the top spot or no one received a majority of the votes, the House of Representatives was to select the President and VicePresident. The election of 1800 demonstrated flaws in this system, given the advent of the two parties. In the 1800 election, Thomas Jefferson and Aaron Burr tied with 73 electors apiece; John Adams came in third with 65 electors (United States National Archives 2016). Each party was expected to cast one vote less for the Vice-President than the president, but the Democratic-Republican party cast the same number of votes for both candidates. After a frustrating series of ballots in the House of Representatives, they chose Jefferson on the 36th ballot. The 12th Amendment ensured that electors would cast votes for two different offices, electing the President on one ballot and the Vice-President on another. Example 21 (Medium): T/F. Until the 14th Amendment, the Bill of Rights restricted national government only.


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This is true, according to the Supreme Court decision in Barron v. Baltimore (1833). Correct answers

Respondents

%Correct

% Correct of all 90 students

33

51

65

37

Background information: holding states to the scope and limits of the Bill of Rights is known as incorporation. A nearly-full incorporation of the Bill of Rights has come relatively lately in American history. In the case of Barron v. Baltimore (1833), the US Supreme Court held that the Bill of Rights did not apply to state governments. In the words of Chief Justice John Marshall, these Amendments “contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them” (250). On its face, the 14th Amendment appears to overturn this decision by granting constitutional rights to everyone in the USA. But many years later, courts decided otherwise. For example, in United States v. Cruikshank (1875), the Supreme Court held that neither the 1st nor the 2nd Amendment applied to state governments; they served only to restrict the power of the national government. With the Court’s decision in Gitlow v. New York (1925), which incorporated the freedom of speech against state governments, courts began to incorporate more and more of the Bill of Rights against state governments until by 2008, when the Court incorporated the 2nd Amendment in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), very few elements of the Bill of Rights remain unincorporated. Among unincorporated elements that remain are the right to indictment by a grand jury (Hurtado v. California 1884); the right to a jury of people from the state and jurisdiction in which the crime occurred (Caudill v. Scott 1988; Cook v. Morrill 1986; Zicarelli v. Dietz 1980); the right to a jury in civil cases (Minneapolis & St. Louis R. Co. v. Bombolis 1916; and Pearson v. Yewdall 1877); and the right against excessive fines (McDonald v. City of Chicago 2010, note 13). Example 22 (Medium): Here is another question that I consider to be of medium difficulty: Which of the following amendments is the most cited in modern litigation?


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(a) (b) (c) (d)

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1 5 9 14

The answer is d: the 14th Amendment (Ragone 2004, 32). Correct answers

Respondents

%Correct

% Correct of all 90 students

13

53

25

14

Background information: one reason for the 14th Amendment’s (2015) being cited so often is because of the number of cases that involve discrimination on the basis of race, gender, religion, and sexual orientation. Recall that by the time John Adams was president there were two parties: the Federalists, who favored a strong national government, and the Democratic-Republicans, who favored states’ rights. The rift between these two parties has remained to the present, although the names of the parties have changed over time. When the 14th Amendment was ratified, July 9, 1868, the opposing parties were the Republicans and the Democrats, although each looked quite different from its counterpart today (Evolution of American political parties 2016). The Republicans, the party of Abraham Lincoln, favored a strong union; the democrats, the party of Andrew Johnson, favored the cause of the southern states. The point for our purposes is that with the 14th Amendment, not to mention the outcome of the Civil War, the balance in power and official national ideology, switched from the states’ rights proponents to proponents of a strong national government. Example 23 (Difficult) T/F. Thirty-three Amendments have received congressional approval. This is true. Six Amendments that Congress has approved have never been ratified. Correct answers

Respondents

%Correct

% Correct of all 90 students

45

63

71

50

Background information: to date, 27 Amendments have been ratified and added to the Constitution. Congress has approved six other


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Amendments that the states have not ratified (Mount 2011). The first was one of the 12 proposed Amendments in 1789, ten of which became the Bill of rights: After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

In other words, if the House membership were to hit 100, the number could not go below 100 again. Similarly with 200. Since there are 435 members today, this Amendment is beside the point, but since it had no expiration date, it is still eligible for ratification. The 11the Congress submitted the following Amendment in 1810: If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

Twelve of 18 states had ratified the Amendment by 1812. Fourteen states would have been necessary to ratify it (Silversmith 1998, 577). Since the Amendment has no expiration date it could still be ratified, but there has been no state response since 1812. In 1861 Ohio Representative Thomas Corwin proposed, and Congress approved of “The Slavery Amendment�: No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The hope was to keep the southern states from seceding, but the Amendment got little momentum as only two states, Ohio, and Maryland,


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ratified it: Ohio, on May 13, 1861, and Maryland, on January 10, 1862 (Porter 2012, 122; Holzer 2008, 429). Ohio rescinded its ratification on March 31, 1864, and Maryland rescinded its ratification on April 7, 2014. Since the Amendment has no expiration date, it could still be ratified. Congress approved the Child Labor Amendment in 1926: Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age. Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

Twenty-eight states had ratified this Amendment by 1937, and no states have ratified it since. Since the Amendment has no expiration date, it could still be ratified, which requires ten more states to ratify it (Mount 2011). The Equal Rights Amendment was first introduced in Congress in 1923 and every year after until 1972, when Congress approved 1979 as the deadline for state ratification (Equal rights amendment 1972). Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

When it failed to pass by the deadline, Congress extended it to 1982. By this deadline 35 states had ratified the Amendment, which was three short of the minimum number to put it in the Constitution. Congress has not extended the deadline since. In 1976, Congress approved the Washington D.C. Voting Rights Amendment: Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State. Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.


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Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed. Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

This Amendment called for D.C. to be represented as if it were a state. Its 1985 deadline came and went with not enough states ratifying it. Efforts to reinstate the Amendment continue (Leadership Conference 2016). Example 24 (Difficult): T/F. The 19th Amendment is informally referred to as the “Declaration of Sentiments.” This is false. Correct answers

Respondents

%Correct

% Correct of all 90 students

17

52

33

19

Background information: the 19th Amendment and the Declaration of Sentiments are both about women’s rights, but they are 72 years apart. The 19th Amendment, recognizing the constitutional right of women to vote, was ratified in 1920. The Declaration of Sentiments was signed by 68 women and 32 men in 1848, at America’s first women’s rights convention, held in Seneca Falls, New York. The Declaration of Sentiments resembles the Declaration of Independence but includes women and men specifically, as is evident from its opening lines: When, in the course of human events, it becomes necessary for one portion of the family of man to assume among the people of the earth a position different from that which they have hitherto occupied, but one to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes that impel them to such a course. We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. … (cited in Gordon, 97)


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Among its signers were Elizabeth Cady Stanton and Lucretia Mott, two of the more famous leaders in America’s women’s rights movement. Category III: External Themes External themes may be distinguished according to whether they are directly relevant or indirectly relevant to the Constitution. In the introduction to this chapter, the debate over who should pay US Representatives and Senators is directly relevant to the Constitution, while the relevance of the corruption of British Parliament when the MPs did not receive pay is a subject that is only indirectly relevant to the US Constitution. Directly Relevant to the Constitution All exam questions about external themes that are directly relevant to the Constitution are either “medium” or “difficult.” Example 25 (Medium): T/F. The Constitution’s preamble cannot be the basis of a lawsuit. Correct answers

Respondents

%Correct

% Correct of all 90 students

45

54

83

50

Background information: the US Supreme Court stated this in Jacobson v. Massachusetts (1905). Henning Jacobson, a Massachusetts resident, refused to obey the state’s law requiring smallpox vaccinations. Among his arguments was that the preamble to the US Constitution guarantees individual liberty and the Massachusetts law violates this right. The US Supreme Court disagreed. Justice John Marshall Harlan, delivering the decision of the Court, opened with these words: We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, c. 75) is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution


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and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied there from.

Example 26 (Medium): To what does the term “State Action” apply? (a) A state’s right to nullify federal legislation on constitutional grounds. (b) A state’s duty to respond to a federal subpoena. (c) A state’s right to hear a criminal case if the crime occurred solely within that state. (d) The requirement that government must be involved for the Constitution or Bill of Rights to apply. The correct answer is d. Correct answers

Respondents

%Correct

% Correct of all 90 students

17

61

28

19

With one exception, only a government entity in the USA can violate one’s constitutional liberties. The exception is the Thirteenth Amendment, which bans slavery by anyone (Dunn 2009). Example 27 (Medium): T/F. Marbury v. Madison establishes that “the federal judiciary is supreme in the exposition of the law of the Constitution.” This is false. Correct answers

Respondents

% Correct

% Correct of all 90 students

12

52

23

13

Background information: this is a quote from Cooper v. Aaron (1958), a case about school desegregation in Arkansas, in which all nine justices wrote the decision together. In it, they note that Article VI makes the Constitution the “supreme law of the land.” They acknowledge Chief


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Justice’s Marshall’s claim in Marbury v. Madison (1803) that “It is emphatically the province and duty of the judicial department to say what the law is.” Then they add: This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

This decision, often referred to as “judicial activism” or “legislating from the bench,” has its critics. One notable critic is Edwin Meese III (1987), US Attorney General under Pres. Ronald Regan. In an essay addressing this issue, Meese said of the decision in Cooper v. Aaron: In this case, in dictum, the Court characterized one of its constitutional decisions as nothing less than “the supreme law of the land.” Obviously constitutional decisions are binding on the parties to a case; but the implication of the dictum that everyone should accept constitutional decisions uncritically, that they are judgments from which there is no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is “What the judges say it is.” The logic of the dictum in Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law. (987)

Example 28 (Difficult): T/F. State laws banning the teaching of evolution are unconstitutional. This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

35

53

66

39

Background information: this was the Supreme Court’s decision in Epperson v. Arkansas (1968), which overturned an Arkansas statute prohibiting the teaching of evolution in public schools. The Supreme Court


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decision was unanimous, with seven justices arguing on the grounds that the Arkansas statute violated the First Amendment’s Establishment Clause because the statute was based solely on Christian Fundamentalist principles. The other two justices argued that the statute violated the 14th Amendment, for being too vague, and that the statute violated the instructors’ right to free speech. Some states responded by legally requiring that public schools teach creationism alongside evolution, but the Court, 7–2, ruled this unconstitutional in Edwards v. Aguillard (1987). In this decision, the Court found that a Louisiana law requiring the teaching of creationism in public schools was based on a specific religion. Justice Scalia and Chief Justice Rehnquist dissented on the ground that the Louisiana legislature had claimed its purposes were secular, not religious, and the US Supreme Court had no evidence to the contrary. Example 29 (Difficult): Which economic system does the Constitution support? (a) (b) (c) (d)

Free market capitalism Mercantile capitalism Socialism None of the above.

The answer is d: none of the above. Correct answers

Respondents

%Correct

% Correct of all 90 students

20

44

45

22

Background information: while it is reasonable to hold that the Constitution is compatible with capitalism—that is the private ownership of the means of production– in some form, the Constitution also gives the government a lot of power to regulate the market place, as is evident from the Commerce Clause. The Commerce Clause refers to Article 1, sec. 8, cl. 3 of the US Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” To the extent that the USA government regulates the market place and from time to time has acted to protect either the corporations or the consumers, it would be reasonable to regard the


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US economic system as some form of state capitalism—i.e., generally capitalist, but with direct and indirect state control. In any event, the Constitution says nothing specifically about one economic system over another, except to the extent that in its original form, it protects the slave economy. Indirectly Relevant to the Constitution Example 30 (Medium): T/F. The primary conclusion of the Federalist papers is that New York should ratify the Constitution. This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

29

55

53

32

Background information: Chap. 2 discusses the Federalist papers at length. Here is some additional information. Soon after the Federation Congress sent the Constitution to the states for ratification, in September 1787, critics began to publish their concerns and objections. Alexander Hamilton decided to respond, setting as his main purpose convincing New York to ratify, since New  York was an opinion leader in politics. Hamilton asked John Jay and James Madison to join in and among them, they wrote a set of 85 editorials between October 1787 and August 1788. Each editorial appeared under the heading “The Federalist” in one of three New York journals –The Independent Journal, The New York Packet, and The Daily Advertiser. And each editorial appeared under the pseudonym “Publius.” While there is some disagreement about which of the papers each of the three authors wrote, there is general agreement that John Jay wrote five, James Madison wrote 28, and Alexander Hamilton wrote 52 (Federalist papers 2016). Recall from Chap. 2 that the basic argument was (1) A federal system is better than a confederate system (as laid out in the Articles of Confederation) and (2) the federalist plan that the Constitution proposes is the best plan available to the USA, therefore (3) New York should ratify the Constitution. In support of the first premise, Publius discusses government responsibility in terms of the dangers facing the USA (papers 2–14) and the prob-


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lems with the present confederacy (15–22). Given the foreign dangers (2–5) and the domestic dangers (6–10), Publius argues for the benefits of a strong union (11–14). Next, he notes and expounds on two types of power that the government needs to fulfill its responsibilities: defense (23–29) and taxation (30–36). Finally, Publius discusses the drafting of the Constitution (37–51), dividing the discussion into four parts: the convention, including objections to it (37–38) and the republican form of the plan (39–40); federal powers (41–44); state powers (45–46); and the separation of powers (47–51). In support of the second premise, Publius focuses on the structure of the proposed government, with a discussion about the legislative branch (52–66), the executive branch (67–77), and the judiciary (78–83). The remaining papers tie up loose ends. It isn’t clear whether the papers achieved their main purpose, since the Constitution was ratified by nine states before New York ratified it. It is clear, however, that the Federalist papers are an invaluable resource for understanding much of the thinking that went into the Constitution, especially, since the Constitution gives no arguments for its provisions, with the possible exception of the 2nd Amendment, which predicates the right to bear arms on the right to a militia. Example 31 (Medium): T/F. A citizen may sue his or her state in federal court. Correct answers

Respondents

%Correct

% Correct of all 90 students

12

49

24

13

Background information: the 11th Amendment prohibits citizens of one state suing another state in federal court. But it was not until 1890 that the US Supreme Court decided that citizens could not sue their own state in federal court either. The decision came in the case of Hans v. Louisiana (1890). In fact, under the principle of sovereign immunity, a citizen cannot sue a state at all without the state’s consent. Example 32 (Difficult): T/F. Miranda warnings are not required when a suspect in jail confesses to a police officer posing as an inmate. This is true.


ASSESSING CONSTITUTIONAL LITERACY

Correct answers

Respondents

%Correct

% Correct of all 90 students

33

50

66

37

163

Background information: Miranda v. Arizona (1966) was a landmark decision of the USA Supreme Court. In a 5–4 majority, the Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights, but voluntarily waived them.

But in Illinois v. Perkins (1990) the court found that Miranda warnings are not required when a suspect in jail confesses to a police officer posing as an inmate, “since the essential ingredients of a ‘police dominated atmosphere’ and compulsion are lacking.” Justice Thurgood Marshall dissented, arguing that The conditions that require the police to apprise a defendant of his constitutional rights—custodial interrogation conducted by an agent of the police— were present in this case. Because Lloyd Perkins received no Miranda warnings before he was subjected to custodial interrogation, his confession was not admissible.

Example 33 (Difficult): Which of the following is a form of constitutional originalism? (a) (b) (c) (d)

Textualism Intentionalism Strict Constructionsim All of the above.

The answer is d: all of the above. Correct answers

Respondents

%Correct

% Correct of all 90 students

20

35

57

22


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Background information (also see Chap. 2): even among the most literate of constitutional scholars there is disagreement about how one should interpret the Constitution. Two broad and opposed categories of interpretation are originalism and non-originalism. Originalists believe that the Constitution’s meaning was settled at its inception and interpreters who invoke it as a premise in an argument or judicial decision, must discern that meaning and be true to it. Any revision to the Constitution must come through the Amendment process that Article V prescribes. Non-originalists hold that the basic purposes of the Constitution, as its Preamble describes, remain, but their meaning—and thus the meaning of much of the Constitution’s contents—change over time. Originalism starts from the premise that the framers’ intent came from absolute and thus unchangeable values. While opportunities to realize these values and opposition to these values may change with advances in science, technology, social norms, and human understanding, the values themselves—such as the presumption of the 4th Amendment that “A man’s home is his castle”—remain inviolable. There are several forms of originalism. Strict Constructionists hold that the Constitution must be taken at face value, and it is up to modern interpreters to discern that value through the many layers of time, conflict, and theory that have arisen since. Is capital punishment constitutional? It was in 1787, although the 8th Amendment prohibits cruel and unusual punishment. New ways of killing people have emerged since 1787; which of these, if any, would constitute cruel and unusual punishment as a means of execution, given the original meaning of “cruel and unusual”? Although an originalist, Justice Antonin Scalia (1997) insists that he is not a strict constructionist: I am not a strict constructionist, and no one ought to be … A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. ( 23)

Instead, Scalia claims to be a textualist. He believes that to be constitutional any decision must comport with the text of the Constitution—and any subsequent statute or court decision that followed the original text. There is still room for interpretation of the text, Scalia agrees, but any such interpretation must demonstrate that it is consistent with the original meaning. For example, the 2nd Amendment confers the right to bear arms. The number and types of weapons in 1787 were smaller than the


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number and types today. Can one ban individual ownership of nuclear weapons and still honor the 2nd Amendment? Scalia says yes. It is permissible to ban certain firearms and to prevent certain people, such as convicted felons, from possessing firearms (District of Columbia v. Heller 2008). Intentionalists hold that given the ambiguity of words even in 1787 it is important to determine the intent behind the words. Justice Clarence Thomas exemplifies this view, as is evident from his claims that “the federal constitution is not meant to address all ills in our society” and the Constitution is not meant “to prohibit everything that is intensely desirable” (Hudson v., McMillian 1992; Bennis v. Michigan 1996). For Thomas, the law should confine itself to matters to which the Constitution limits itself. If for example, the Constitution does not acknowledge a right to privacy, then there is no constitutional right to privacy and judges should not declare otherwise (Babcock 1992). The basic point on which all originalists agree is that the court should not create new rights or new laws—that is up to the legislature, which should itself act within the confines of the Constitution (Theories of constitutional interpretation 2016). Non-originalists argue that the Constitution is a living document that judges must interpret in the context of contemporary values and that the framers intended the Constitution to be adaptable to change. Proponents of non-originalism often speak in terms of a “living Constitution.” They claim either that the practical realities of political life have changed dramatically since 1787 or that the framers intended for there to be constitutional change over time (Strauss 2010). Some refer to this view as judicial activism, since it seems to imply that judges have the right, if not the duty, to legislate from the bench when proper legislative channels fail to yield the desired result. Consider Brown v. Board of Education (1954), for example, which overturned Plessy v. Ferguson (1896) and its doctrine of “separate but equal.” The result was good for the country, but the legislature should have taken the initiative, not leave it to the court to do so. Moreover, some have accused even the most conservative of justices of being judicial activists when it suits their purpose (Young 2002). Recall from Chap. 2 that Justice Stephen Breyer (2005) embraces a type of non-originalism that he calls “active liberty.” Breyer argues that citizens have the right to participate in government and judges are in a position to advance that right where the legislature and the executive branches have failed to do so. Glossip v. Gross (2015) reveals clearly the disagreement between the


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Supreme Court’s originalists and its non-originalists. In a 5–4 decision the Court decided that the use of midazolam in executions by lethal injection did not violate the constitutional prohibition of cruel and unusual punishment. Justice Alito, writing for the majority, claimed that the level of pain that might accompany the execution did not rise to the level of “cruel and unusual,” and since the Constitution permits capital punishment otherwise, executions with this drug could continue. In a concurring opinion, Scalia agreed. In a dissenting opinion, Breyer argued that by prevailing social and legal standards, the death penalty is no longer acceptable in any form. Category IV: External History External history refers to historical data and events that are directly relevant or indirectly relevant to the Constitution, but of which the Constitution is not the central subject. As with internal history, it is useful to divide this category into pre-ratification and post-ratification. In our opening example, we identified corruption in England’s Parliament as the cause for American concern about how to compensate US Representatives and Senators—this was a pre-ratification concern. We also noted the successful efforts of a college student to add the 27th Amendment to the Constitution. This was post-ratification. Pre-ratification Example 34 (Easy): The Federalist papers were written by (a) (b) (c) (d)

John Jay, James Madison, and Alexander Hamilton James Madison, George Mason, and Ben Franklin Alexander Hamilton, James Ellis, and George Washington John Jay, John Adams, and Governeur Morris

The answer is a: Jay, Madison, and Hamilton. Correct answers

Respondents

% Correct

% Correct of all 90 students

23

52

44

26


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Background information: see the discussion above, regarding Example 30. Example 35 (Medium): Which of the following is not a reason that the Declaration of Independence gives for declaring independence? (a) King George “has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation hither.” (b) King George “has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.” (c) King George “has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” (d) King George “has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” The answer is a. Correct answers

Respondents

%Correct

% Correct of all 90 students

18

56

32

20

Background information: Thomas Jefferson included this charge in his original draft of the Declaration, but Congress struck it (Boyd 1950, 243–247). Note that acknowledging this might lead to a discussion about Jefferson’s remarkable ambivalence concerning slavery. Even as he spoke out against slavery and favored laws abolishing the importation of slaves and prohibiting slaves in the northwest territories, he favored laws protecting slavery in the south and he kept slaves himself (Finkelman 1993). Example 36 (Medium): What were the dates of Athenian democracy?


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C. DREISBACH

1250-510 BCE 510-322 BCE 510 BCE-40 CE Athens has never been a democracy

The answer is b: 510-322 BCE. Correct answers

Respondents

%Correct

% Correct of all 90 students

25

54

46

28

Background information: this question reminds us that the Constitution has important historical antecedents, of which the framers were aware. Among these were Ancient Athens’ experiment with democracy (510-322 BCE) (Rhodes 2004). A more in-depth discussion might take participants back to the pre-democracy attempts at creating a community of laws, with Draco’s code (c. 621 BCE) and Solon’s code (c. 590 BCE). This discussion could also provide a chance to distinguish the direct democracy of Athens with the representative democracy of the Roman Republic (510BCE-40 CE?) and of the USA. In a direct democracy, every citizen participates—or is free to participate—in every government decision, including legislation and adjudication. In a representative democracy, the people select their decision makers and then step back from directly participating in the decisions (Barber 2004). This is one of many points in our discussion where one might object that this knowledge is unnecessary to sworn officials’ doing their job well. Granted, but the more one knows about what one has promised to protect, the more one should understand the richness of that promise. It is for another work to investigate empirically how constitutional literacy correlates to one’s success and satisfaction on the job. Example 37 (Difficult): Which of the following pre-constitutional documents recognizes the right to redress grievances against the government? (a) (b) (c) (d)

The Magna Carta The English Bill of Rights Neither a nor b. Both a and b.


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The answer is d: both the Magna Carta and the English Bill of Rights recognize this right. Correct answers

Respondents

%Correct

% Correct of all 90 students

20

49

41

22

Background information: here is the relevant section from The Magna Carta (We the People Congress 2016.): If we [King John], our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us—or in our absence from the kingdom to the chief justice—to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain [seize property for money owed] upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they havedetermined upon. Having secured the redress, they may then resume their normal obedience to us. (§ 61).

The English Bill of Rights (1689) contains this clause: “And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.” I anticipated this question as being difficult to answer because it is reasonable to expect most people not to have read the Magna Carta or the English Bill of Rights. That few students answered this question correctly is no indication by itself of worrisome constitutional illiteracy. Nevertheless, the more that stakeholders in the Constitution know about its history, the better. Example 38 (Difficult): Which of the following pre-constitutional documents recognizes the right to free speech?


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(a) (b) (c) (d)

C. DREISBACH

The Magna Carta The English Bill of Rights The Massachusetts Bay Colony Body of Liberties All of the above.

The answer is c: The Massachusetts Bay Colony Body of Liberties. Correct answers

Respondents

%Correct

% Correct of all 90 students

13

51

37

14

Background information: the Magna Carta contains no reference to free speech. The English Bill of Rights allows free speech in parliament: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” But this right goes no farther. Indeed, during this time England had strict laws against sedition and seditious libel, verbal and written speech, respectively, criticizing the government. The Massachusetts Body of Liberties (1641) mentions freedom of speech in its 12th and 75th paragraphs. 12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner. 75. It is and shall be the libertie of any member or members of any Court Councell or Civill Assembly in cases of makeing or executing any order or law, that properlie concerne religion, or any cause capitall, or warres, or Subscription to any publique Articles or Remonstrance, in case they cannot in Judgement and conscience consent to that way the Major vote or suffrage goes, to make their contra Remonstrance or protestation in speech or writeing, and upon request to have their dissent recorded in the Rolles of that Court. So it be done Christianlie and respectively for the manner. And their dissent onely be entered without the reasons thereof, for the avoiding of tediousnes.

In other words, people in Massachusetts, “whether inhabitant or [foreigner],” had the right to speak up in a legislative or judicial session; and members of the court council or civil assembly had the right to express


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their dissent orally or in writing. While there were restrictions, especially concerning blasphemy, this enactment marked a big step forward in the history of the right to free speech. Post-ratification Although the category is external history, post-ratification facts may be either directly or indirectly relevant to the Constitution. Directly relevant to the constitution Example 39 (Medium): Which of the following court cases temporarily stopped all executions in the United States? (a) (b) (c) (d)

Furman v. GA 1972 Gregg v. G, 1976 Gilmore v. Utah 1976 None of the above.

The answer is a: Furman v. GA 1972. Correct answers

Respondents

%Correct

% Correct of all 90 students

22

44

50

24

Background information: in Furman v. GA (1972), the Court decided 5–4 that the death penalty in the USA constituted cruel and unusual punishment in violation of the 8th and 14th Amendments. Three justices argued that the death penalty was unconstitutional in its current form and practice because it was arbitrarily racially biased, especially against Black men. Justice Brennan and Justice Marshall argued that the death penalty is unconstitutional in all circumstances. The dissenting justices ignored the question of bias and noted that the death penalty had always been constitutional and that the 14th Amendment allows the taking of human life with due process of law. The Court consolidated this case with two others: Jackson v. GA and Branch v. TX, which involved capital punishment for rape. The Court reversed itself, 7–2, in Gregg v. GA (1976), finding that the law governing execution in Georgia was no long arbitrary or capricious. The court let stand the unconstitutionality of capital punishment for rape.


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Example 40 (Medium): Which of the following decisions made it illegal for laws to discriminate against women? (a) (b) (c) (d)

Bradwell v. Illinois 1873 Goesaert v. Cleary 1948 Hoyt v. FL 1961 Reed v. Reed 1971

The correct answer is d: Reed v. Reed 1971. Correct answers

Respondents

%Correct

% Correct of all 90 students

12

41

29

13

Background information: in Reed v. Reed (1971) the Court found that Idaho’s probate code, which gave men preference over women as estate administrators, violated the equal protection clause of the 14th Amendment. This was the first time the Court had found that a state law discriminating against women violated the Equal Protection Clause (Breaking new ground 2016). In Bradwell v. Illinois (1873) the Court upheld a state law forbidding women to become lawyers. Central to its finding was that the privileges which the 14th Amendment refers to— “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—did not extend to professions. Moreover, Justice Joseph P. Bradley held that “The laws of the creator make being a wife and mother the paramount destiny and mission of woman” (Monk 2003, 223). In Goesaert v. Cleary (1948) the Court allowed a law limiting women bartenders on moral grounds: “Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures.” In Hoyt v. Florida (1961), the Court allowed a law that exempted women from jury duty, unless they volunteered, “on the ground that women need to be home with their families” (Monk 2003, 224). Example 41 (Medium): What was the crucial decision in Bush v. Gore, 2000?


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(a) Article II of the Constitution requires all parties in a political election to agree to a recount. (b) Article II of the Constitution requires a disputed Presidential election to be decided by the House of Representatives, not by a state supreme court. (c) Lack of uniform recounting procedures in Florida violated the Equal Protections clause of the 14th Amendment (d) Lack of uniform recounting procedures in Florida violated the Due Process clause of the 14th Amendment The correct answer is c. Correct answers

Respondents

%Correct

% Correct of all 90 students

14

40

35

16

Background information: in the 2000 presidential election, the race came down to Florida in which the vote was so close that news sources on election night, November 7, could not agree on who had won Florida, Al Gore or George W. Bush. The first full count, Wed. November 8, gave the win to Bush by a margin of 1784 votes of over six million cast (Toobin 2008, 169). Under Florida law, so close a call required all Florida counties to do a recount. By the next day, Bush’s margin had dropped to 327 votes. The number of votes in most Florida counties was uncontroversial, but Gore asked for a manual recount in four democratic-leaning counties– Broward, Miami-Dade, Palm Beach, and Volusia—in which the count was inconclusive. Bush sued in the federal court arguing that “Gore’s ‘selective’ recounts in only four counties violated the Equal Protection Clause of the 14th Amendment, because they emphasized the votes of some counties over others” (Toobin 2008, 171). The court disagreed, finding that Florida law in this matter did not favor one candidate over the other, and allowed the recount to continue. In response, Florida Secretary of State, Katherine Harris, a Republican, announced that under Florida law, she would certify the election seven days after the vote, November 14, even if the recounts were not finished. She could have extended the deadline. Although she certified the vote, the Florida Supreme Court decided on November 17 that the recount could continue and three days later it extended the deadline to November 26, at which point Harris could certify the election. As of November 17, the vote count stilled favored Bush by a small margin, and if it were to end then, Bush would win. On


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November 21, Bush filed a petition for certiorari—judicial review by the US Supreme Court. The petition included four possibilities: the Florida court violated federal election laws; the court violated Article II of the Constitution, which gives legislatures, not courts, the right to regulate presidential elections; the recount violated the Equal Protection clause of the 5th and 14th Amendment; and the recount violated the Due Process clauses of the 5th and 14th Amendments (Toobin 2008, 176). On November 24, the court granted the certiorari petition by a vote of 5–4 and heard the argument under the case title Bush v. Palm Beach County Canvassing Board (2000). On December 4, 2000, the Court decided to vacate the Florida Supreme Court’s decision to allow the recount to continue and asked the Florida Supreme court to explain its decision in the light of Florida law and federal law concerning the appointment of electors. Before the court could answer, a local judge, N. Sanders Sauls, in Tallahassee, ruled that the recount should stop, and Harris’s certification of Bush’s victory should stand (Toobin 2008, 181, 184). On December 7, the Florida Supreme Court overruled Sauls’ decision and ordered the recount to continue. Bush filed a new brief with the US Supreme Court on December 8, under the heading Bush v. Gore. The Court immediately granted a stay of the recount and ordered oral arguments for December 11. On December 12, the Court found, 7–2, for Bush, on the ground that the Florida Supreme Court’s plan for recounts violated the Equal Protection Clause of the Constitution by limiting the vote count to certain ballots and certain counties (Bush v. Gore 2000). The Court also concluded 5–4, that no remedy could be applied within statutorily-set time limits. In dissent, Justice Stevens wrote: Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Justice Souter agreed with Stevens’ dissent and added, There is no justification for denying the State the opportunity to try to count all disputed ballots now.

Soon after, news sources reported that Souter was so upset by what he saw as a partisan decision, that he threatened to resign. Justice Ginsberg agreed with her colleagues in dissent, adding,


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In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States

Where Stevens and Souter had closed with “I respectfully dissent,” Ginsberg closed with “I dissent.” It is unclear whether Ginsberg dissented with disdain. Justice Breyer in dissent opened thus, The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume. The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

He closed with “I respectfully dissent.” In 2013, Justice Sandra Day O’Connor, a lead voice in favor of Bush but now retired, said that it might have been better not to have taken the case in the first place (Toobin 2013). Indirectly relevant to the Constitution Example 42 (Medium): Here is a question that I anticipated being of medium difficulty: T/F. The term “Founding Fathers” was first used by Warren G. Harding in 1918. This is true. Correct answers

Respondents

%Correct

% Correct of all 90 students

41

60

68

46

Background information: while one might imagine that this term has been around for the better part of American history, it first appears on the record on February 22, 1918. In a speech to the Sons and Daughters of the Revolution, then Sen. Harding said, “It is good to meet and drink at the fountains of wisdom inherited from the founding fathers of the Republic” (cited in Monk 2003, 17).


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Example 43 (Difficult): T/F. By 2000, only 4.3% of federal criminal charges ended in jury verdicts. This is true (Monk 2003, 175). Correct answers

Respondents

%Correct

% Correct of all 90 students

29

45

64

32

Background information: by 2004, the figures were only slightly better, with 95 % of defendants pleading guilty, 2 % being found guilty by the jury, and 3  % being found guilty in bench trials (Bureau of Justice Statistics 2016). In a compelling and controversial article law professor John H. Langbein (1980), equates the plea agreement process with torture and argues that the Constitutional right to a trial by jury requires the prosecution to provide such a trial. In other words, plea agreements are unconstitutional.

SUMMARY In previous chapters we have considered the nature, lack, and value of constitutional literacy. In this chapter we have considered one approach to assessing constitutional literacy. This approach involves a test to which Chap. 3 also refers. Chapter 3 brings up the test as one way of offering evidence of a pervasive lack of constitutional literacy among sworn law enforcement professionals. In this chapter we let the same test serve as the foundation of an assessment for constitutional literacy. The test is divided into four principal categories: internal themes, internal history, external themes, and external history. Category I is divided into three parts: distinguishing the Constitution from other documents, requiring reading the Constitution only, and requiring extra thought beyond a reading of the constitution, such as interpretation or research. Category II is divided into pre-ratification and post-ratification. Category III is divided into questions that are directly relevant to the Constitution and questions that are indirectly relevant. And Category IV is divided into pre-ratification and post-ratification, with the latter being further divided into questions referring directly to the Constitution and questions referring indirectly to the Constitution. Questions may be easy, of medium difficulty, or difficult, depending on how much knowledge is required beyond basic knowledge of


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the Constitution’s anatomy. This chapter offers 43 examples, including questions from each of the four categories, each of the sub-parts, and from each level of difficulty. This chapter also includes scores from students who have taken the test, along with background information to facilitate discussion about each question, once students have taken the test and are ready to go over the answers. While this approach is offered as a useful place to start when thinking about assessing constitutional literacy, there may be better ways to structure the test and better questions to include in the test, both in quality and in quantity. Also, there is much work to do in determining how helpful the test is in assessing and promoting constitutional literacy. Chapter 7 says some more about this as it considers where the work of this book might lead and what other relevant work may be going on or pending. The next chapter considers ways of promoting and encouraging constitutional literacy and returns to a modified form of the test outline to suggest a proto-curriculum for advancing constitutional literacy through education formally and informally.

REFERENCES Babcock, Barbara. 1992. Judge Clarence Thomas’ views on the fundamental right to privacy: A report to the United States Senate Judiciary committee. The Black Scholar 22(1/2): 138–143. Baradaran, Shima. 2011. Restoring the presumption of innocence. Ohio State Law Journal 72(4): 723–776. Barber, Benjamin. 2004. Strong democracy: Participatory politics for a new age. Berkeley: University of California. Barker v. Wingo 407 U.S. 514 (1972). Barron v. Baltimore, 32 U.S. 243 (1833). Bennis v. Michigan, 516 U.S. 442 (1996). Benton, Michael. 2013. Declaration of Independence Benjamin Franklin. Benjamin Franklin [Website]. November 6. http://benjaminfranklinbio. com/declaration-of-independence-benjamin-franklin/161/. Bernstein, Richard. 1992. The sleeper wakes. The history and legacy of the twentyseventh amendment. Fordham Law Review 61: 495–557. Blackstone, William. 1840. Commentaries on the laws of England: In four books; with an analysis of the work. Vol. 2. New York: W.  E. Dean. https://books. google.com/books?id=7aQLAQAAIAAJ&pg=RA1-PA56&lpg=RA1-PA56& dq=Five+species+of+treason+english+law&source=bl&ots=6yqLgBO94p&si g=F8_wQn3fYM6exgssQhe_9IDKkY4&hl=en&sa=X&ved=0ahUKEwjk_IjNt


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MDJAhWBeT4KHX0GBHwQ6AEIQzAH#v=onepage&q=Five%20species%20of%20treason%20english%20law&f=false. Accessed 21 Jan 2016. Bloom, Sol. 1986. The story of the Constitution. Washington, D.C.: National Archives and Records Administration. http://www.archives.gov/exhibits/ charters/constitution_q_and_a.html. Original work published 1937. Boyd, Julian, ed. 1950. The papers of Thomas Jefferson, vol 1, 1760–1776. Princeton: Princeton University Press. Boyer v. Louisiana, 569 U. S.__ (2013). Bradwell v. State of Illinois, 83 U.S. 130 (1873). Breaking new ground. 2016. The Supreme Court Historical Society [Website]. http://supremecourthistory.org/lc_breaking_new_ground.html. Accessed 22 Jan 2016. Breyer, Stephen. 2005. Active liberty: Interpreting our democratic constitution. New York: Alfred A. Knopf [Ch. 2, 5]. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Bureau of Justice Statistics. 2016. FAQ detail: What percentage of felony convictions were the results of a guilty plea? BJS.gov. http://www.bjs.gov/index. cfm?ty=qa&iid=405. Accessed 22 Jan 2016. Bush v. Gore, 531 U.S. 98 (2000). Bush v. Palm Beach County Canvassing Board 531 US 70 (2000). Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988). Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). Coffin v. U.S., 156 U.S. 432 (1895). Cole, David. 2003. Are foreign nationals entitled to the same constitutional rights as citizens? Thomas Jefferson Law Review 25: 367–388. Coleman v. Miller, 307 U.S. 433 (1939). Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986). Cooper v. Aaron 358 U.S. 18 (1958). Cramer v. United States, 325 U.S. 1 (1945). Declaration of the Rights of Man. 1789. http://avalon.law.yale.edu/18th_century/rightsof.asp. Accessed 22 Jan 2016. District of Columbia et al. v. Heller, 544 U.S. 570 (2008). [Ch. 3, 5]. Dunn, Christopher. 2009. Applying the Constitution to private actors. NYCLU. org,April28.http://www.nyclu.org/oped/column-applying-constitution-privateactors-new-york-law-journal Edwards v. Aguillard, 482 U.S. 578 (1987). English Bill of Rights. 1689. http://avalon.law.yale.edu/17th_century/england. asp. Accessed 22 Jan 2016. [Ch. 5, 6]. Epperson v. Arkansas, 393 U.S. 97 (1968). Equal rights amendment. 1972. Mount Laurel: Alice Paul Institute [Website]. http://www.equalrightsamendment.org/. Accessed 22 Jan 2016


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Evolution of American political parties. 2016. Everything 2 [Web site]. http:// everything2.com/title/Evolution+of+American+political+parties+from+the+ Revolution+to+the+Reconstruction. Accessed 22 Jan 2016. Ex Parte Bollman, 8 U.S. 75 (1807). Federalist papers. 2016. ConstitutionFacts.com. https://www.constitutionfacts. com/us-articles-of-confederation/the-federalist-papers/. Accessed 22 Jan 2014. Finkelman, Paul. 1993. Jefferson and slavery: Treason against the hopes of the world. In Jeffersonian legacies, ed. Peter Onuf, 181–221. Charlottesville: University Press of Virginia. 14th Amendment. 2015. Nolo.com. http://www.nolo.com/legal-encyclopedia/ content/14th-amend-doc.html. Franklin, Benjamin. 1787a. On praying at the Constitutional Convention. Speech Philadelphia: Constitutional Convention, June 28. http://www.americanrhetoric.com/speeches/benfranklin.htm. Accessed 26 Jan 2016. Franklin, Benjamin. 1787b. On the completed Constitution. Speech Philadelphia: Constitutional Convention, September 17. Frantzich, Stephen. 1999. Citizen democracy: Political activists in a cynical age. New York: Rowan & Littlefield. Furman v. Georgia, 408 U.S. 238 (1972). Gitlow v. New York, 268 U.S. 652 (1925). Glossip v. Gross, 576 U.S. (2015). Goesaert v. Cleary, 335 U.S. 464 (1948). Gordon, Ann D. ed. 1997. Selected papers of Elizabeth Cady Stanton and Susan B. Anthony: Vol. 1, In the school of anti-slavery, 1840 to 1866. New Brunswick: Rutgers University Press.From http://ecssba.rutgers.edu/docs/seneca.html. Access 22 Jan 2016. Gregg v. GA, 428 U.S. 153 (1976). Hamilton, Alexander. 1788b. Compromises of the Constitution. Speech. Philadelphia: Constitutional Convention, June 20. http://teachingamericanhistory.org/ librar y/document/speech-on-the-compromises-of-the-constitution/ . Accessed 22 Jan 2016. Hans v. Louisiana 134 U.S. 1 (1890). Haupt v. United States, 330 U.S. 631 (1947). Henchman, Joseph. 2013. Today in history: Income tax ruled unconstitutional in Pollock v. Farmers Loan Trust Co. Tax Foundation [Website]. April 8. http:// taxfoundation.org/blog/today-history-income-tax-ruled-unconstitutionalpollock-v-farmers-loan-trust-co. Heritage Foundation. 2016. New Jersey recognizes the right of women to vote, February 22, 1797. Heritage.org. http://www.heritage.org/initiatives/firstprinciples/primary-sources/new-jersey-recognizes-the-right-of-womento-vote.


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Herman, Susan. 2006. The right to a speedy and public trial: A reference guide to the United States Constitution. Westport: Prager. History, Art and Archives, U.S. House of Representatives. 2016. The Permanent Apportionment Act of 1929. http://history.house.gov/Historical-Highlights/ 1901-1950/The-Permanent-Apportionment-Act-of-1929/. Accessed 22 Jan 2016. Holzer, Harold. 2008. Lincoln president-elect: Abraham Lincoln and the great secession winter 1860–1861. New York: Simon & Schuster Hoyt v. Florida, 368 U.S. 57 (1961). Hudson v. McMillian, 503 U.S. 1 (1992). Hurtado v. California, 110 U.S. 516 (1884). Illinois v. Perkins, 496 U.S. 292 (1990). Jacobson v. Massachusetts, 197 U.S. 11 (1905). [Ch. 5, 6]. Jefferson, Thomas.1787a. Letter to John Adams, August 20. http://www.sitater. com/home/thomas/tmas_05.htm. Jefferson, Thomas. 1787b. Letter to James Madison, December 20. http://www. loc.gov/exhibits/jefferson/jefffed.html. ———. 1802. Letter to the Danbury Baptist association, January 1. https:// www.loc.gov/loc/lcib/9806/danpre.html. Jensen, Erik. 2005. Three-fifths clause. In The heritage guide to the Constitution, eds. Edwin Meese, Matthew Spalding, and David Forte, 54–55. Washington, DC: The Heritage Foundation. Kelly, Debra. 2013. Women could vote before the 19th Amendment. KnowledgeNuts.com, December 11. http://knowledgenuts.com/2013/ 12/11/women-could-vote-before-the-19th-amendment/. Klopfer v. North Carolina, 386 U.S. 213 (1967). Langbein, John. 1980. Torture and plea bargaining. Public Interest 58: 43–61 [Ch. 4, 5]. Leadership Conference on Civil and Human Rights. 2016. D.C. voting rights: Current legislation 2009/2010. Civilrights.org http://civilrights.org/votingrights/dc-voting-rights/?referrer=https://www.google.com/. Leland, John. 1788. Letter to James Madison, February 28. https://sites.google. com/site/thislandisyourlandbhcc/home/john-leland-s-objections-tothe-constitution. Madison, James. 1788a. Federalist No. 43. The Independent Journal, January 23. Madison, James. 1788b. Federalist No. 51. The New York Packet, February 8. Madison, James. 1788c. Federalist No. 54. New York Packet, February 12. Map: States grant women the right to vote. 1930 Constitutioncenter.org. http:// constitutioncenter.org/timeline/html/cw08_12159.html Marbury v. madison 5 U.S. 137 (1803). Massachusetts body of liberties. 1641. http://history.hanover.edu/texts/masslib. html. Access 22 Jan 2016.


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McDonald v. City of Chicago 561 U.S. 742 (2010). Meese, Edwin. 1987. The law of the Constitution. Tulane Law Review 61: 979–990. Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). Miranda v. Arizona, 384 U.S. 436 (1966). [Ch. 5, 6]. Monk, Linda. 2003. The words we live by: Your annotated guide to the Constitution. New York: Hyperion [Ch. 3, 5, 6]. Moody v. Daggett, 429 U.S. 78 (1976). Mount, Steve. 2011. Constitutional topic: The failed amendments. US Constitution. net. http://www.usconstitution.net/constamfail.html National Constitution Center. 2006. Centuries’ of citizenship: A constitutional timeline- 1907–1930: Map: States grant women the right to vote. [Web site] Retrieved from http://constitutioncenter.org/timeline/html/cw08_12159. html. National Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 (2012). Pearson v. Yewdall, 95 U.S.294 (1877). Plessy v. Ferguson, 163 U. S. 537 (1896). Pollock v. Farmers’ Loan & Trust Company, 157 U.S. 429 (1895). Porter, G.H. 2012. Ohio politics during the Civil War. New York: Ulan Press. Printz v. The United States 521 U. S. 898 (1997). Ragone, Nick. 2004. The everything American government book: From the Constitution to the present. Avon: Adams Media. Reed v. Reed 404 U. S. 71 (1971). Rhodes, P.J. 2004. Athenian democracy. Edinburgh: Edinburgh University Press. Scalia, Antonin. 1997. A matter of interpretation: Federal courts and the law. Princeton: Princeton University Press. Shestokas, David. 2014. Sixth Amendment’s speedy trial right: Ancient, worthy, and elusive. Shestokas.com, November 13. http://www.shestokas.com/ constitution- educational-series/sixth-amendments-speedy-trial-rightancient-worthy-and-elusive/. Shmoop Editorial Team. 2008. Benjamin Franklin in Constitutional Convention. Shmoop.com, November 11. http://www.shmoop.com/constitutionalconvention/benjamin-franklin.html. Silversmith, Jol. 1998. The ‘missing thirteenth amendment’: Constitutional nonsense and titles of nobility. Southern California Interdisciplinary Law Journal 8: 577–611. Stevens, John Paul. 2014. Six amendments: How and why we should change the Constitution. New York: Little, Brown, & Co. Strauss, David. 2010. The living constitution. The Record Online (University of Chicago), Fall. http://www.law.uchicago.edu/alumni/magazine/fall10/ strauss.


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Theories of constitutional interpretation. 2016. University of Missouri-Kansas City Law School. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/ interp.html. Accessed 22 Jan 2016. Toobin, Jeffrey. 2008. The nine: Inside the secret world of the Supreme Court. New York: Anchor. ———. 2013. Justice O’Connor regrets. New Yorker, May 6. http://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. United Nations. 1948. Universal declaration of human rights. http://www.un. org/en/universal-declaration-human-rights/. Accessed 22 Jan 2016. United States. 1797. Treaty of peace and friendship between the United States of America and the Bey and subjects of Tripoli of Barbary. http://avalon.law.yale. edu/18th_century/bar1796t.asp#art11. Access 22 Jan 2016. United States Census Bureau. 2016. U.S. World and population clock. http:// www.census.gov/popclock/. Accessed 22 Jan 2016. United States Internal Revenue Service. 2016. Understanding taxes: Student. Theme 4, lesson 4. Apps.irs.gov. https://apps.irs.gov/app/understandingTaxes/student/whys_thm04_les04.jsp. United States National Archives and Record Administration. 2016. 1800 presidential election. Archives.com. http://www.archives.gov/legislative/ features/1800-election/1800-election.html. United States v. Cruikshank, 92 U.S. 542 (1875). Virginia Declaration of Rights. 1776. http://www.constitution.org/bcp/virg_ dor.htm. Accessed 22 Jan 2016. Washington, George. 1796. Farewell address. American Daily Advertiser, September 19. http://avalon.law.yale.edu/18th_century/washing.asp. Accessed 22 Jan 2016. [Ch. 5, 6]. Watson, Alan, ed. 1998. The digest of Justinian. Philadelphia: University of Pennsylvania Press. We the People Congress. 2016. Magna Carta, sec. 61. Wethepeoplecongress.org. http://www.wethepeoplecongress.org/PROJ/REVOLUTION/0-Quotes. htm. Wills, Garry. 2003. ‘Negro president’: Jefferson and the slave power. Boston: Houghton Mifflin. Young, Ernest. 2002. Judicial activism and conservative politics. University of Colorado Law Review 73(4): 1139–1216. Zadrydas v. Davis, 533 U.S. 678 (2001). Zedner v. United States., 547 U.S. 489 (2006). Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).


CHAPTER 6

Improving Constitutional Literacy

INTRODUCTION: THE LIBERTY BILL ACT In 1998, civics teacher Randy Wright and his students from Liberty Middle School in Ashland, VA, set out to educate America and the world about the US Constitution by having a condensed version of it placed on the back of the US dollar bill (Kroll 2003). They quickly gained the support of state and federal legislators, newspapers, and civic groups, although it was not until 2001, that a Congressman, Eric Cantor (R-VA) introduced the Liberty Bill Act to Congress. The Bill did not pass, but Wright and his students persevered, taking their cause to Capitol Hill every summer until June 12, 2009, when Cantor tried again. HR 2854—The Liberty Bill Act (2009)—introduced in the House was To require the Secretary of the Treasury to redesign $1 Federal Reserve notes so as to incorporate the preamble to the Constitution of the United States, a list describing the Articles of the Constitution, and a list describing the Amendments to the Constitution, on the reverse side of such notes.

Once Cantor introduced the bill, it was referred to the Committee on Financial Services. Seven findings offer the premises of the argument for the bill: 1. many Americans are unaware of the provisions of the Constitution of the United States, one of the most remarkable and important documents in world history; © The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4_6

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2. an abbreviated version of the Constitution, consisting of the preamble, a list of the Articles, and a list of the Amendments, could easily be placed on the reverse side of $1 Federal reserve notes; 3. the placement of an abbreviated version of the Constitution on $1 Federal Reserve notes would remind the American people of the historical importance of the Constitution and its impact on their lives today; 4. the preamble would remind Americans of the blessings of liberty; 5. the Articles would remind Americans of the framework of the United States Government; 6. the Amendments would remind Americans of the historical changes to this living document that forms the very core of the American experience; and 7. people throughout the world would also learn about the framework of a republican government, the blessings of liberty, and the ideals of human rights through the exchange of American currency. The proposed design would incorporate the preamble to the Constitution of the USA, a list describing the Articles of the Constitution, and a list describing the Amendments to the Constitution. Once again, the bill failed to pass, but as I learned in a phone call with Randy Wright (December 11, 2015), a new project has emerged: Teaching Tours (http://www.teachingtours.org/). This continues the project of taking school-aged children to Washington, DC, exciting them about history, government, communication skills, and other subjects, with an eye toward helping the children articulate and pursue their dreams. Given how timely and important the Liberty Bill project is, one hopes it will find another congressional sponsor, even as Wright and his students pursue other adventures. There is no public indication of strong objections to the bill. Some vending machine companies have expressed concern about having to adjust their machines to read the new bill, and some people want to eliminate the paper dollar bill altogether, but it is not evident that these objections have had an effect on Congress (Kroll 2003). The Liberty Bill Act is appealing civically and aesthetically. Civically, as section 2 of HR. 2854 notes, the benefits would be local, national, and global. Locally and nationally, people would be reminded of the basic contents of their Constitution when they held or passed a dollar bill. As we have seen, there is much more to constitutional literacy than merely being


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able to cite its words or memorize its structure—there are also the meaning and history behind the words and structure and the many possible interpretations and consequences of those interpretations. But familiarity with its basic content and structure is a good—and perhaps necessary— place to start toward developing constitutional literacy. Globally, the dollar is ubiquitous. With the passage of the Liberty Bill Act, the dollar bill would inform “people throughout the world about the framework of a republican government, the blessings of liberty, and the ideals of human rights through the exchange of American currency” (§2, par. 7). Aesthetically, the design as proposed would be eye-catching and continue the tradition of American currency’s intricate, historical, and informative imagery. In any event, the Liberty Bill Act initiative serves well as an introduction to this chapter, which looks at some possible ways of promoting and, one hopes, improving constitutional literacy.

PROMOTING AND IMPROVING CONSTITUTIONAL LITERACY: SWORN AND NON-SWORN In looking to promote and improve constitutional literacy, we have identified two general audiences or groups of stakeholders: sworn and nonsworn. Among the sworn we may distinguish among those who complete formal training or education before taking the oath, such as law enforcement professionals and lawyers; those who take the oath at the beginning of their professional training, such as the military; and those who are not required to complete any educational program before taking the oath. This third group includes, for example, elected officials and many civil service personnel. This is not to deny that many civil service positions require training, as with US Postal workers, for example, but this training may not include anything about the Constitution (39 U.S.C.A. §1011). Among the non-sworn are citizens and non-citizens. As Chap. 4 notes, citizens for whom constitutional literacy is desirable include jurors; voters; participants in public conversation on talk radio, in letters to the editor, and on social media; consumers of social goods and services; any citizen interacting with public servants; and students. Non-citizens under US jurisdiction have a vested interested in constitutional literacy as beneficiaries of US public goods and services; as people who might have to navigate through some part of the US legal system; and as participants in public conversation about political and social states


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of affairs in the USA. Moreover, any student of the USA, whether under its jurisdiction or not, will benefit from constitutional literacy, given the central role that the Constitution plays or should play in all things American. Whether to sworn or non-sworn, the value of learning opportunities to advance one’s constitutional literacy is of benefit to all stakeholders. Books and courses abound on the Constitution, most of which should provide the information and pedagogy necessary for improvement in constitutional literacy. But it will be useful to add to the collection of available resources a modular outline—a proto-curriculum—that could be used in pieces or in its totality, both in formal coursework and training and in informal education and training. The framework for assessment that we considered in the previous chapter offers the basis for one such outline. We repeat it here having in mind a foundation for future training and education where its function in the previous chapter was primarily to evaluate learning that has already occurred

A PROTO-CURRICULUM: FOUR MODULES For this chapter, think of the four parts of the test that Chap. 5 discusses as four modules: internal themes, internal history, external themes, and external history. Each module can stand alone although to add a module is to show connections between or among modules. Also, in each module, topics can range from easy, requiring little effort to comprehend or little prior knowledge of related topics; through moderately difficult (“medium”), requiring increased effort to comprehend and some prior knowledge of the Constitution and related topics; to difficult, requiring a high level of effort to comprehend and extensive prior knowledge of the Constitution and related topics. We leave for another discussion whether and how to draw a clear line among these three levels of difficulty. The discussion of assessing constitutional literacy in the previous chapter provides food for thought on this topic, but developing a formal, well-defended distinction is beyond our immediate purpose. Module I: Internal Themes Module I, Internal Themes, has three parts: requiring reading of the Constitution only; distinguishing the Constitution from other texts; and requiring extra thought beyond a reading of the Constitution, such as interpretation, stipulation, or research.


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Part 1: Requiring Reading the Constitution Only Part 1, requiring only a reading of the Constitution with the possibility of different levels of comprehension, divides into (a) a mere inventory of the structure and parts of the Constitution, and (b) a closer look at key elements of the Constitution’s structure and parts. In effect, this part is an examination of the Constitution’s anatomy. A Mere Inventory The inventory has three main headings: the Preamble, the seven Articles, and the twenty-seven Amendments. Under these come explicit or implicit subheadings that lead into (b). Thus, • The Preamble – – – – – – –

We the People A more perfect union Justice Domestic tranquility Common defense General welfare Blessings of liberty

• The Seven Articles – – – –

I-III: The Three branches of government The Legislature The Executive branch The Judicial Branch

– – – –

Article IV: Relations among the States Article V: Constitutional Amendments Article VI: The Constitution as the supreme law of the land Article VII: Ratification

• The Twenty-seven Amendments • Amendments 1–10 (1789): the Bill of Rights • Amendments 11–12 – 11 (1798): Lawsuits limited against states; sovereign immunity – 12 (1804): Election of the President and Vice President, given a party-system


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• Amendments 13–15: The Civil War Amendments – 13 (1865): Slavery illegal – 14 (1868): Citizenship; equal protection; due process – 15 (1870): Voting rights for Blacks • Amendments 16–19 – – – –

16 (1913): Direct income tax 17 (1913): Senators elected directly 18 (1919): Prohibition 19 (1920): Voting rights for women

• Amendments 21–22 – 20 (1933): Changes start and end dates of terms of office for President, Vice President, and Congress – 21 (1933): Repeal of Prohibition – 22 (1951): Two-term limit for President • Amendments 23–26 – – – –

23 (1961): The District of Columbia gets electors 24 (1964): Poll tax cannot be a requirement for voting 25 (1967): Presidential succession 26 (1971): Voting rights for citizens as young as 18

• Amendment 27 (1992): Congress cannot give itself a raise during the session in which it approves of a raise A Closer Look at Key Elements of the Constitution’s Structures and Parts Having identified the structure and general parts of the Constitution, one may move in for a closer look, identifying facts about the content of the Constitution. Among the facts are general topics covered, key terms, and what is not in the Constitution. General topics covered The bulleted list above identifies topics covered in a preliminary way. A more detailed outline would include, for example, by general heading. • The Seven Articles


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– The number and topic(s) of each section within Articles I-IV. There are no sections in Articles V-VII. – Articles I-III: The composition of each branch of government; the rights and responsibilities—or powers—within each branch of government; the qualifications for the various offices within each branch of government; term lengths and limits; means of administering each branch and office; and the crime of treason (in Art. 3). – Article IV: “Full faith and credit”; new states and territories; guarantee of a republican form of government. – Article V: Two-thirds of Congress and three-fourths of the states required to ratify an Amendment; prohibition of any anti-slavery Amendment before 1808; prohibition of denying any state its two US senators. – Article VI: Debts and treaties; the oath of office. – Article VII: Nine states needed to ratify. • The Twenty-Seven Amendments: rights specifically guaranteed by each Amendment; deadlines for ratification, in Amendments that have such deadlines; Congress’s right to enforce the Amendment, where such enforcement is included explicitly. Key terms This section looks at key constitutional terms and expressions that are unusual or ambiguous. At this stage, the point is simply to identify them. Part 3 of Module I discusses possible definitions and absences of definition. Examples of ambiguous terms and expressions include The specific aims that the Preamble names, Article 1: “direct taxes”; “three-fifths of all other persons”; “power of impeachment”; “President of the Senate”; “President pro tempore”; “the power to try all impeachments”; “bills for raising revenue”; the powers enumerated in Article 1, section 8; “the migration or importation of such persons…”; “habeas corpus”; “bill of attainder”; “ex post facto law”; “capitation”; “title of nobility”; “letters of marque and reprisal”; “imposts or duties” Article II: “Electors”; “natural born citizen”; “Commander in Chief”; “advice and consent of the Senate”; “power to fill up all vacancies”; “high crimes and misdemeanors” Article III: “good behavior”; “original jurisdiction”; “appellate jurisdiction”; “treason”


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Article IV: “Full faith and credit”; “privileges and immunities”; “no person held to service or labor…” (the fugitive slave act); “a republican form of government”; Article V: “Amendment”; “equal suffrage in the Senate” Article VI: “the supreme law of the land”; “oath or affirmation” Article VII: “the conventions of nine states” (vs. the legislatures) Amendment 1: “peaceably to assemble” Amendment 2: “A well-regulated militia”; “the right of the people to keep and bear arms” Amendment 3: “Quartered” Amendment 4: “Unreasonable searches and seizures”; “probable cause” Amendment 5: “Infamous crime”; “the same offence to be twice put in jeopardy of life”; “a witness against himself”; “due process of law”; “just compensation” Amendment 6: “A speedy…trial”; “impartial jury”; “compulsory process for obtaining witnesses”; “assistance of counsel” Amendment 7: “the rules of common law” Amendment 8: “Excessive bail”; “excessive fines”; “cruel and unusual punishment” Amendment 14: “Due process of law”; “equal protection of the laws”; “the validity of the public debt” Amendment 15: “On account of race, color, or previous condition of servitude” Amendment 16: “tax on incomes, from whatever source derived”; “without apportionment among the several states”; “without regard to any census or enumeration” Amendment 18: “manufacture, sale, transportation, importation, exportation”; “of intoxicating liquors”; “for beverage purposes” {Note: nothing about consumption or use of such liquors for other purposes} Amendment 19: “On account of sex” Amendment 23: “But in no event more than the least populous State” Amendment 24: “By reason of failure to pay any poll tax or other tax” What is not in the Constitution One can find many informative lists of topics that people have incorrectly ascribed to the Constitution Here are examples of such topics, some of which we have identified in previous chapters:


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Congressional Districts The Electoral College (no reference to a “college”) Executive Order Executive Privilege Freedom of Expression God Immigration Impeachment as removal from office Innocent until proven guilty “It’s a free country” Judicial Review Jury of Peers Marriage Martial Law No taxation without representation Number of Justices in the Supreme Court Paper Money Political Parties Primary Elections Qualifications for Judges The right to privacy The right to travel The separation of church and state The Separation of Powers Clause Slavery

Part 2: Distinguishing the Constitution from Other Texts Since the focus of this module is on the Constitution itself, the purpose of this part here is to see whether one can distinguish constitutional content from the content of other documents, without necessarily being able to name or identify those other documents. Some familiarity with these other documents is more important under external themes and external history. In choosing documents for comparison, one may distinguish between American documents and non-American documents. Among the American documents that one ought to be able to distinguish from the Constitution are, for example, the Declaration of Independence, the Articles of Confederation, treaties, colonial compacts and state constitutions, speeches, and court decisions.


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Among non-American documents, one might distinguish between ancient legal documents, legal documents existing around the time of the Constitution’s ratification, and more recent documents. Examples include The Code of Hammurabi (c. 1754 BCE); Draco’s Law Code (7th century BCE); the Twelve Tables of the Roman Republic (c. 449 BCE); The Magna Carta (1215); The English Bill of Rights (1689); the Declaration of the Rights of Man and of the Citizen (France, 1789); Constitutions from other Countries; and the Universal Declaration of Human Rights (1948). Part 3: Requiring Extra Thought Beyond a Careful Reading of the Constitution Itself Sticking close to the Constitution, this part of the module considers possible definitions of some of the key terms and expressions, as noted above; nicknames for parts of the Constitution; theories of constitutional interpretation; and theoretical questions. Nicknames The most common sort of nickname for constitutional content refers to a particular clause. For a comprehensive list, see S. Mount (2012). Here are some examples: The Advice and Consent Clause (Art. 2, sec. 2, cl. 2; Art. 3, sec. 2, cl. 1) The Civil War Amendment: 13, 14, 15 The Commerce Clause (Art. 1, sec. 8, cl. 3) The Copyright Clause (Art. 1, sec. 8, cl. 8) The Diversity (of Citizenship) Clause (Art. 3, sec. 2) The Double Jeopardy Clause (Amendment 5) The 1808 Clause (Art. 1, sec. 9, cl. 1) The Elastic Clause, or the Necessary and Proper Clause (Art. 1, sec. 8, cl. 18) The Establishment Clause (Amendment 5) The Free Exercise Clause1 (Amendment 1) The Fugitive Slave Clause (Art. 4, sec. 2, cl. 3) The Full Faith and Credit Clause (Art. 5, sec. 1) The Guarantee Clause (Art. 5, sec. 4) The Indian Commerce Clause (Art. 1, sec. 8, cl. 3) The Interstate Commerce Clause (Art. 1, sec. 8, cl. 3) The Supremacy Clause (Art. 6, cl. 2) The Three-fifths Clause (Art. 1, sec 2, cl. 3)


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The Treaty Clause (Art. 2, sec. 2, cl. 2) The War Clause (Art. 1, sec. 8, cl. 11) Theories of Constitutional Interpretation Chapter 5 discusses theories of constitutional interpretation in some detail. This subject fits into the module at this point, because by now, assuming the module is being followed in sequence, students will have encountered ambiguous terms and phrases, policies that seem arbitrary, and provisions that may pertain to concerns today. At the same time, students might wonder what help is available in clearing up these ambiguities, explaining the reason behind or value of those policies, and how precisely the provisions pertain to today. Since the effort in this module focuses on the Constitution itself, an example or two of judicial disagreement that represents different theories of interpretation should suffice, with further discussion left to other modules. Almost any Supreme Court case that was not decided unanimously contains examples of judicial disagreement, much of which reflects differences in theories of interpretation. For example, Chap. 3 opens with disagreement in Heller over the scope and limits of the 2nd Amendment. Theoretical Questions Among the theoretical questions that arise, without pointing to sources outside the Constitution, are possible theories or presumptions behind certain terms, such as “liberty,” “cruel and unusual,” “speedy trial,” “excessive bail”; possible reasons for certain policies, such as two-year terms for representatives, six-year terms for senators, four-year terms for president, and appointments “for life” of Supreme Court justices; and the significance of what the framers put into the Constitution and what they left out. On this latter point, note that the framers expressly omitted any religious test for office, including any requirement that a constitutional oath of office be taken with a hand on the Bible. Engaging these theoretical questions will either point to other modules for future discussion or incorporate one or more of those modules simultaneously, depending on how ready the conversation is for going into greater thematic or historical depth. Module II: Internal History The Convention was not called in an historical vacuum, nor were discussions and decisions at the Convention free of historical antecedents. One of the many remarkable qualities of the delegates was their his-


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torical knowledge, even as they disagreed on the significance of that history for their present purpose and on the conclusions to which that history pointed. The first division of this module, Module 2, is into pre-ratification and post-ratification. Because the focus is internal, the history here is immediately relevant to the signed draft of the Constitution on September 17, 1787. An example of what one might include here follows. Pre-ratification The two documents most directly antecedent to the Constitution were the Declaration of Independence (1776) and the Articles of Confederation (ratified in 1781). The Declaration of Independence separated us from the British government but left us with no national government beyond the Continental Congress, made up of delegates from the 13 colonies (Rakove 1979). Many of the delegates to the first Continental Congress, which met in 1774, were loyal to the Crown, but by July 2, 1776, the second Continental Congress voted unanimously to declare America’s independence from Britain. America had its first government beyond the Congress, when it ratified the Articles of Confederation, on March 1, 1781. Congress continued to act as the national executive body, now calling itself the Congress of the Confederation. A significant historical bridge between the Articles of Confederation and the Constitution was the Meeting of Commissioners to Remedy the Defects of the Federal Government, which consisted of 12 delegates from five states, meeting in Annapolis, Maryland in September 1786 (Baltz 1986). The Articles of Confederation left each state generally autonomous. There were no national means of collecting revenue or creating a standing military; and states were imposing tariffs on each other, with no national means of removing trade barriers among the states. At the conclusion of the Annapolis Convention, the delegates—from Delaware, New Jersey, New York, Pennsylvania, and Virginia—sent the report of their meeting to Congress and the states, asking for the convention that would be held in Philadelphia the following spring. Meanwhile, Shays’ rebellion was in full force (Richards 2002). Beginning on August 29, 1786, Daniel Shays, a Revolutionary War veteran and Massachusetts farmer, led almost 4000 Massachusetts residents in a rebellion against the state government, protesting severe policies to collect debts and taxes. Federal officials put down the rebellion for the most part


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by February 1787, with some flare ups until June 1787. The inability of the Federal Government to prepare for and deal with such rebellions was thought to be one of the reasons the Confederation Congress was eager to revisit the Articles of Confederation and produce a national government that was more effective in managing interstate commerce, collecting taxes, and providing a national military for protection against internal insurrection and foreign hostility against the USA. The conventional wisdom was that the convention in Philadelphia would modify the Articles of Confederation while leaving intact the bias in favor of the states over a national government. James Madison and Alexander Hamilton had other ideas, however, which would become clearer to the delegates once the convention got underway, and clearer to the world, once the completed draft of the Constitution was made public. Under the Articles of Confederation, there could be no major modifications to them without unanimous consent among the 13 states. Thus, when Rhode Island failed to show up for the Constitutional convention, believing that a stronger Federal Government would hurt the state, the convention should have shut down. The new Constitution required only 9 of the 13 states to ratify it and Rhode Island took a long time to give in, which it did on May 29, 1790, being the last of the 13 states to ratify. This was two and a half years after Delaware was the first state to ratify on December 7, 1787. From May 25 to September 17, 1787, the 55 convention delegates, with most not present all the time, set about drafting the document under the presidency of George Washington. Pieces of the document went through many drafts before being accepted, as did the document as a whole. Two of the greater causes for disagreement were slavery and the difference in power between the big states and the small states. For the purposes of this module, discussion of one or more of the following plans and compromises would be worthwhile. The Virginia Plan, which Virginia Governor Edmund Randolph presented, called for the lower and upper houses of Congress to be selected according to the size of the states. The lower house would be elected by the voters; the upper house would be elected by the lower house. The legislature would also select the executive who would play a minor role, solely to execute the legislature’s will, as he did in the Articles of Confederation. Small states complained that this gave big states, with many more representatives in both houses, an unfair federal advantage. Eventually, the delegates rejected this plan.


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The New Jersey Plan, which William Paterson presented, called for keeping the Confederation Congress, which allowed each state one vote. To critics, this would give small states a lot of federal authority out of proportion to their size. Delegates rejected it quickly. Unhappy with both the Virginia Plan and the New Jersey Plan, Alexander Hamilton proposed a strong national plan in which state sovereignty would be abolished, and a national bi-cameral legislature would be the central ruling body. Voters would choose members of the lower house, who would serve for three years. Voters would also choose electors who would choose members of the upper house who would serve for life. The national legislature would choose the state governors and could veto any state legislation. Many states at the time believed that individual states were sovereign and the national government should be subordinate to state interests. These proponents of states’ rights quickly did away with Hamilton’s plan. Roger Sherman, of Connecticut, proposed the “Great” or “Connecticut” Compromise, which called for a lower legislative house, with the number of representatives from each state proportional to its population; and an upper legislative house, with two senators from each state. With some modification, this became the Constitution’s model for Congress. A less salutary compromise was the three-fifths compromise, which counted each slave as three-fifths of a person for the purpose of determining the number of representatives from each state. In the end 39 of the 55 delegates signed the Constitution. Six of these had also signed the Declaration of Independence: A. George Clymer, Benjamin Franklin, Robert Morris, George Read, Roger Sherman, and James Wilson. Robert Morris and Roger Sherman had also signed the Articles of Confederation. The signed drafts were sent to the states who were asked to ratify by convention, not by state legislature. All the states eventually ratified, but some did so by a close vote, and many did so only after proposing Amendments to the Constitution. In an effort to encourage New York to ratify, John Jay, Alexander Hamilton, and James Madison, published the Federalist papers. We have talked about these Federalist papers elsewhere, but for the purposes of implementing this module, consideration of the Federalist’s argument structure and, time and interest permitting, content, would be of great value in helping participants see why the Constitution offers the provisions that it does. While the primary purpose of the Constitution was to give the national government a means to collect revenue—primarily through taxes—and to build and maintain a national military, the framers recognized the


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need to articulate many of the rights that the states and critics of the Constitution demanded. The immediate result was the Bill of Rights, containing the first 10 Amendments to the Constitution. Recall that until the 14th Amendment, the Bill of Rights was seen as pertaining to the Federal Government only, not to the state governments. Recall, too, that Congress proposed 12 Amendments, but only the 3rd through the 12th Amendments made it in the Bill of Rights. The second proposed Amendment, concerning raises in congressional salaries, would become the 27th Amendment 202 years later. The first proposed Amendment has never been ratified. Someone implementing this module might note the early actions of the newly formed Congress and the election of George Washington as President in an off year—that is a year not evenly divisible by four. Post-ratification The remainder of this part of the module, an examination of the history of the Constitution itself, would focus on the remaining 17 Amendments, including their contents, their dates ratified, and the reasons behind them. Participants might also consider the six Amendments that Congress approved but that the states never ratified (see Chap. 6) and note that over 11,000 Amendments have been proposed, inviting questions about why such a small percentage has been ratified, and what the next Amendment, if there is one, would be about (Stevens 2014). Module III: External Themes “External” refers to themes and history beyond the constitutional document itself. These references may still have the Constitution as a central subject or backdrop; or these references may not have the Constitution at their center, but may raise issues or describe historical moments that are relevant to our understanding of the Constitution. Thus, we may divide external themes into those that are directly relevant to the Constitution and those that are indirectly relevant to the Constitution. Directly Relevant to the Constitution A component of Module I requires extra thought beyond a careful reading of the Constitution. But the focus of that thought is on the text. Does the Constitution define “cruel and unusual”? Does the document explicitly defend capitalism? How many crimes does the Constitution define anything explicitly?


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The component of Module III that is directly relevant to the Constitution comprises questions and theories about Constitutional implications that the document does not expressly state or define. Categories of external themes referring directly to the Constitution include, for example, debates over the validity of the Constitution or parts of it; constitutional law as an academic study; statutes that do not explicitly follow directly from the Constitution; common law and regulations; and court decisions. Debates Over Validity Examples of debates over the validity of the Constitution or parts of it include whether the Constitution governs states as well as the Federal Government; whether the Constitution pertains to government entities only, or whether it also applies to individuals; and whether the Preamble can be the basis of lawsuits. Each of these has been judicially settled, although such settlements are always open to revision or Amendment. Recall from Chap. 5 that in 1833, the Supreme Court declared that the Constitution did not apply to state governments (Barron v. Baltimore 1833). The 14th Amendment declares otherwise. In 1905, the Court declared that the Constitution’s preamble cannot be the basis of a lawsuit (Jacobson v. Massachusetts 1905). “State action” refers to the principle that the Constitution applies to governments and not to individuals (State action 2016). Not all debates in this vein have been settled. One that continues is whether courts may take international or foreign law into account when deciding on the constitutionality of an American act or statute. Justice Antonin Scalia claims that it should not, although he is willing to consider foreign or international law when passing judgment on treaties (Dorsen 2005). Justice Stephen Breyer claims that law comes or should come from a democratic process and that such processes do not stop at US boundaries. Constitutional Law as an Academic Study While constitutional law by its very title must refer to the Constitution, much of it takes place without looking at the document itself. This appears to be one of the issues with the constitutional portion of police training academies: trainees learn about court decisions and statutes that affect police professional and personal conduct, but the trainees do not delve into the Constitution itself, either thematically or historically, even though academy graduates must swear an oath to the Constitution before entering the profession.


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One recent text on constitutional law (Barron and Dienes 2013) indicates by its outline how the study of constitutional law and a study of the Constitution itself might dovetail (vii–ix): Part One: Allocation of Governmental Power: National and State I. II. III. IV.

Judicial review National Legislative Powers State Power in American Federalism Congress and Executive Power

Part Two: Individual Rights and Liberties: Constitutional Limitations on Governmental Power V. VI. VII. VIII. IX. X. XI.

Historical Perspectives Due Process of Law Equal Protection Freedom of Expression Freedom of Religion State Action Congressional Legislation in Aid of Civil Rights and Liberties

Statutes An obvious and useful example of statutes that do not follow from the Constitution is the body of traffic laws. While it would appear that legislatures have the right to enact traffic laws, the Constitution says nothing of the kind and some of these laws have raised constitutional issues. For example, under what circumstances may a police officer search your car without a warrant if she has stopped you for a traffic violation? In 2015, the New Jersey Supreme Court decided that the officer would need only probable cause to suspect that the car contained illegal contraband (Toutant 2015). The 5–2 decision rested in part on the impracticality of stricter rules. Common Law and Regulations Common law comes from court decisions; regulations, as the term is relevant to this module, come from the executive branch. Either may be challenged for their constitutionality, but neither comes directly from the Constitution. Chapter 5 discusses legal realism, the view that for practical purposes, law is whatever a judge decides, regardless of written legislation otherwise. When the Supreme Court, in Plessy v. Ferguson (1896) allowed “separate but equal”


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treatment of Blacks, that became the law of the land until the Court overruled itself in Brown v. Board of Education of Topeka (1954). In 1961, Pres. John F. Kennedy issued Executive Order 10925 (1961), requiring contractors for the government to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin” (§301, 1). Implementing this portion of the module provides an opportunity for participants to compare statutes, common law, and regulations; and to examine and assess several examples of each on its own merits and on its constitutionality. Court Decisions Consideration of common law leads directly into consideration of specific courts cases. Participants who are sworn might feel most at home in this context of constitutional study. Police officers, for example, can be expected to know Mapp v. Ohio (1961), which held that any evidence acquired in violation of the 4th Amendment is inadmissible in court; Terry v. Ohio (1968), which found that reasonable suspicion was enough justification in some cases for frisking a suspect; and Miranda v. Arizona (1966), which requires police officers to notify suspects of their right to counsel, before the police begin to interrogate the suspects. Beyond well-known cases, this portion of the module invites discussion of many sorts of cases and the rights they either confer or deny. We have seen many examples of such cases already in this book, but a few more examples might be illustrative. Is flag burning protected free speech? Yes, according to the decision in United State v. Eichman (1990). Are laws that increase penalties for hate crimes unconstitutional? No, according to Wisconsin v. Mitchell (1993). In constitutional terms can a trial be too public? Yes, according to Sheppard v. Maxwell (1965). Indirectly Relevant to the Constitution We may divide this part of Module III into three smaller topics: the makeup and function of US federal, state, and local government, other than what the Constitution states explicitly; concepts often associated with the Constitution that are not in it; and the philosophical/theoretical backdrop for the Constitution. Make-Up and Functions of Governments Examples of topics in the make-up and function of the nation’s governments include the following. One electoral vote in South Dakota represents less than half as many people as one electoral vote in New York


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(Monk 2003, 69). Forty-one Senators out of 100 represent only 10 % of the US population (Monk 2003, 69–70). The executive branch is the largest of the three branches of the Federal Government: in 2014, there were 4,122,000 civilian and uniformed employees in the executive branch; compared with 63,000 in the federal legislative and judicial branches combined. In other words, 67  % of federal employees work for the executive branch (United States Office of Personnel Management 2016). The Government can take away welfare benefits without notice or a chance for a hearing (Goldberg v. Kelly 1970). Minor accomplices cannot be put to death under the Felony Murder Rule (Enmund v. FL 1982). And in spite of executive privilege, the President must comply with a subpoena in criminal cases, except to protect military or diplomatic secrets (United States v Nixon 1974). External Themes Mistakenly Ascribed to the Constitution Module I includes an inventory of words and phrases that are mistakenly ascribed to the Constitution. The present module includes three concepts that often are mistakenly associated with the Constitution: democracy, capitalism, and American exceptionalism. Implementing this part of the module gives participants the chance to get clearer on what they mean by these concepts and their practical and moral value. The chance also occurs to explore why the Constitution does not cover these topics. Among the plausible answers, the framers rejected democracy in favor of a republican form of government; the academic discussion on economic systems and the growing enthusiasm for capitalism were new in 1787 and irrelevant to the chief purposes of the Constitution; and American exceptionalism as a premise for US global policy and international relations was not of national interest and would not be so until the Spanish-American War in 1896. On this latter point, in Washington’s (1796) Farewell Address, he pleaded with Americans not to get caught in “foreign entanglements,” since God had seen fit to put some distance between the USA and the rest of the world. Moreover, the USA had a lot of growing and internal housekeeping to do before it was ready to take on the world. First, it had to clear up tension between the states’ rights people and the federalists/nationalists: this would take the Civil War. Then it had to recover from that war. Except for the Monroe Doctrine in 1823, which warned European countries not to attempt colonizing North or South America, lest they face the wrath of the USA, America did not flex its global muscle until the Spanish-American War. After that, of course, America has often been seen—by itself and others—as “The City upon Hill” (Winthrop 1630;


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Reagan 1989). Whether this is an apt characterization and, if so, whether it is morally appropriate are also topics that might arise during the implementation of this part of the module. Philosophical/Theoretical Backdrop The US Constitution is a major milestone in the social and political history of the human race. From the point of view of external themes, saving external history for the next module, a crucial element in the social and political backdrop of the Constitution is social contract theory. The theory as it influenced American thinking was less than two centuries old when Jefferson incorporated John Locke’s (1690) version of the theory into the initial draft of the Declaration. All social contract theories hold that humans, not God, create civil society, complete with sovereign and subjects, in order to mitigate the shortcomings of the state of nature. The state of nature, as a social concept, is a state in which there is no humanmade government or a condition in which it is “every man for himself.” For Thomas Hobbes (1651), this is a terrible condition to be in, since humans are selfish, acquisitive, and roughly equal in strength and ability. With no sovereign to keep the inhabitants from killing each other, life is “nasty, brutish, and short.” For Hobbes, then, the primary purpose of the government is to act as a bouncer, keeping us from doing each other in, so that we can then pursue life’s comforts. Locke had a much more optimistic view of human nature, believing that most people if left to their own devices would get along fine. Fundamental to Locke’s political view is the natural, or God-given, right to property. Locke defined property as the ownership of oneself and the fruits of one’s labor. Two sorts of challenges to one’s property rights might arise: criminal and civil. Criminally, someone may try to steal someone else’s property. Civilly, two parties may disagree about whose property is whose, or what property one owes another. For Locke, government’s purpose is to protect property rights against criminal and civil challenges, serving as an umpire, rather than as a bouncer. Jean-Jacque Rousseau (1988) had high regard for humans in their natural state, believing them to have uncorrupted morals. Once humans tasted the fruits of civilization, however, there was no going back to that utopian state nature. Government’s primary purpose, for Rousseau, is to promote the common good as much as possible. Individual humans should strive to listen to their natural impulses and instincts, never fully letting go of “the noble savage,” that is the human being at his or her


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best. Rousseau’s greatest influence on American thought comes from his promotion of democracy as the least objectionable form of government, and his reverence for nature. A useful conversation at this juncture would be over whose views among these three social contract theorists is most evident today. Module IV: External History The Constitution has a lengthy pedigree and has been a significant antecedent to much social and political thought that followed ratification. As with internal history, it is useful to divide this module into two parts: preratification and post-ratification. Pre-ratification Pre-ratification topics in the external history of the Constitution include, for example, political history, legal history, history of the idea of rights, history of the idea of justice, and American history up to the Declaration of Independence. Political History Political history would include theories regarding possible political systems and optimal political systems. This might be generally organized into a monarchy, aristocracy, and democracy and its variants (Aristotle Politics, III, 7). This history would also include an analysis of examples, such as Athenian democracy, the Roman republic, and the British monarchy, with an eye toward understanding how each influenced the framers. Legal History Legal history would include a history of the idea of law, along with the evolution of legal practices. Over 50 years ago, Carl Joachim Friederich (1963) published a book on the history of the idea of law, which remains informative. He notes and describes the following theories of law: • Law as the Will of God (Code of Hammurabi; Old Testament) • Law as Participation in the Idea of Justice (Plato and Aristotle) • Law as the Expression of the Laws of Human Nature (Stoics and Romans) • Law as Order and Peace of the Community of Love (St. Augustine)


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• Law as the Mirror and Part of the Divine World Order (St. Thomas Aquinas) • Law as Historical Fact (The Humanists) • Statutory Law Against Natural Law (Jean Bodin, Johannes Althusius, and Hugo Grotius) • The English Constitutional Tradition (Sir Thomas Smith and Richard Hooker) • Common Law against Natural Law (James I, Edward Coke, and Francis Bacon) • Law as Command (Thomas Hobbes) • Law as the Basic Law of the Constitution (John Locke and Montesquieu) • Law as the Expression of “Pure Reason” (Benedict Spinoza to Christian Wolff) • Law as the Expression of the General Will (Jean-Jacques Rousseau and Immanuel Kant) • Law as the Expression of the Spirit (Georg Friedrich Hegel) • Law as Class Ideology (Karl Marx and Friedrich Engels) • Philosophical Liberalism (Rudolf von Ihering and Rudolf Stammler) • The Decline of Legal Philosophy (Relativists, Formalists, and Skeptics) Legal practices in historical perspective might include forms of legislating, enforcing, and adjudication; trial by ordeal versus trial by jury; the lex talionis—“eye for an eye”; torture as a means of eliciting a confession; and forms and purposes of punishment. History of Rights A history of the idea of rights would begin with the Cyrus Cylinder. This contains the decree of Cyrus King of Persia who, in 539 BC, conquered Babylon. Soon, he freed the slaves, called for racial equality, and recognized the right of people to choose their religion. This history would proceed by following the development of natural law theory through Greece, Rome, and early and medieval Christianity, a theory that also includes the concept of natural rights. Next might come the Magna Carta (1215) and the Petition of Right (1628) which enumerate the rights that the people of Britain have against tyrannical acts their King might do. We might also include The English Bill of Rights (1689) and early American compacts and treaties, although these come close enough to the time of the Constitutional convention, that we might also include these in the module on internal history.


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History of Justice The history of the idea of justice closely follows the history of the idea of law, although treatment of each might follow an outline different from the other. Chapter 2 addresses the utility of dividing the concept of justice into distributive, commutative, and retributive. It is useful further to distinguish between legal justice and moral justice. Where much of this might be discussed in the module on external themes, there remains a historical tale to tell about various theories that fall under these headings. For example, distributive justice refers to a just distribution of goods and services. Libertarians claim that justice demands the sovereignty of each individual over his own property (Nozick 1977). What’s his is his, unless he has acquired it unjustly, and it is unjust to take what is his without his consent. Egalitarians insist that every legitimate stakeholder receive an equal share of the goods and services, since they can exist only within a community whose economic and legal system permits the production of those goods and services (Rawls 1971). Utilitarians aim for a middle ground between the libertarians and the egalitarians, arguing that justice requires promoting the greatest possible good for the greatest possible number of stakeholders (Mill 1863). Each of these positions has its historical champions, and a review of the theories and theorists in this history should help deepen one’s understanding of the Constitution and hence improve one’s constitutional literacy. American History Narrower in scope and greater in relevance to the Constitution is American history pre-ratification. Why did Europeans come to the North American continent? A common answer is to practice their religion freely. But when the Pilgrims arrived, the Dutch had already set up shop in the new world, doing business with the Iroquois nation and showing little interest in religiously evangelizing or proselytizing the natives (Shorto 2004). Also, the behavior of those who sought religious freedom in the new world often belied that commitment to freedom, because these people were hard on those who did not see or practice religion as the authorities saw it. Commercial interests took no back seat to religious interests among the European movers and shakers in the new world. How much of that history was influential on the Constitution over and against religious interests? Post-ratification Post-ratification external history would continue identifying the historical vectors of the ideas of law, rights, and justice, including development of new theories in each area post-ratification and how much influence the


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Constitution had on that development. Take, for example, the French Revolution: it is arguable that France’s constitution, which was developed in 1787, and the National Assembly, which was established in 1791, were influenced by the US Constitution or the American attitudes and behaviors leading up to it. On the other hand, both the US Constitution and the French Revolution might have been influenced by the Enlightenment, which ought also to be a topic of discussion on the external history of the Constitution. In addition to continuing tracing the history of the ideas of laws, rights, and justice, this module should include new developments in American history. These developments include political movements, especially the development of political parties; religious movements; technological developments; developments in intra-national and international relationships; development of democracy globally; development of constitutionalism globally; and the evolution of the conservatives and liberals, in their own terms and in relation to each other. Here is an outline of the Modules: Module I: Internal Themes Part 1: Requiring only a reading of the Constitution (a) A mere inventory 1. The Preamble 2. The Seven Articles 3. The 27 Amendments (b) A closer look at key elements of the Constitution’s structure and parts 1. General Topic Covered 2. Key Terms 3. What is not in the Constitution Part 2: Distinguishing the Constitution from other Texts (a) American Documents (b) Non-American Documents Part 3: Requiring extra thought beyond a reading of the Constitution, such as interpretation, stipulation, or research


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Possible definitions of key terms Nicknames Theories of Constitutional Interpretation Theoretical Questions

Module II: Internal History Part 1: Pre-ratification Part 2: Post-ratification. Module III: External Themes Part 1: Referring to the Constitution Directly (a) (b) (c) (d) (e)

Debates over the validity to the Constitution or parts of it Constitutional Law as an economic study Statutes that do not follow explicitly from the Constitution Common Law and Regulations Court Decisions

Part 2: Referring to the Constitution Indirectly (a) The make-up and function of the US federal, state, and local government (b) Concepts often associated with the Constitution that are not in it (c) The Philosophical/Theoretical Backdrop of the Constitution Module IV: External History Part 1: Pre-ratification (a) (b) (c) (d) (e)

Political History History of the Idea of Law History of the Idea of Rights History of the Idea of Justice American History up to the Independence

Part 2: Post Ratification (a) (b) (c) (d) (e)

Political History History of the Idea of Law History of the Idea of Rights History of the Idea of Justice American History after Ratification


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HOW IT MIGHT WORK With this proto-curriculum at the ready, we can imagine different ways to put it to use, depending on the audience. Of course, improving the audience’s constitutional literacy is the primary goal, and one could accomplish this in ways that did not require specifically applying this chapter’s proto-curriculum. But most of the contents of this curriculum, and much that others could add, ought to be preserved, regardless of the structure of its organization. Sworn Personnel In thinking about the various audiences we can, once again, divide them into sworn and non-sworn. Sworn participants include those for whom formal education is a prerequisite for taking the oath—whether upon completion of training, as with police and lawyers, or at the beginning of training, as with the military— and those for whom formal education is not a prerequisite. Police As criminal justice professor Allison Chappell (2008) notes, formal police training of any sort has been around for only about 60 years. Before that, police learned on the job. Once formal basic training began, its contents and methods varied across the country, but certain topics were common. These included firearms training; defensive strategies and tactics; the process of arrest, interrogation, and report writing; and the law, as it relates to the officer’s jurisdiction. More recently it is common to find additional academy training on community-police relations, communications strategies, and diversity. But as we saw in Chap. 2 there appears to be little effort toward promoting the recruits’ constitutional literacy and in many cases the “swearing in” comes as the recruits graduate and are eager to hit the streets. The oath and the Constitution that informs it are at risk of being a last minute detail that stands between the officers and the start of their careers. Police entering the profession get their training at an academy, through designated college courses, or both. Upon completing the training successfully, they graduate, usually taking the oath to the Constitution on graduation day. Compare this to the military recruits who swear an oath to the Constitution on the day they enlist—at the start of their training. Why not have police recruits take the oath at the start of their training as well?


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To be sure, many recruits who enter the academy leave the academy before graduating, but their having taken the oath does no damage. It is somewhat like being baptized but deciding not to practice Christianity. At most it costs a minute or two of one’s time, even if it leads to not practicing Christianity. If academies are still reluctant to swear in their recruits at the beginning of the training, then the recruits should still be made aware up front about the fact and contents of the oath. Once the recruit has taken the oath upon entering the academy, or been made aware of it in detail, training policy should encourage the students to challenge their instructors by asking what the particular bit of instruction has to do with the oath: how is this instruction going to contribute to the officer’s ability to fulfill the oath? The curriculum should also include courses or sections of courses that promote constitutional literacy. This is not to deny the importance of training the recruits in the areas noted above, including defensive tactics, use of firearms, and the mechanics of arrest; but it is to take seriously the officers’ swearing an oath that they may not understand or appreciate in the absence of adequate training on the Constitution. Consider the basic training curriculum of a highly regarded and effective state agency, the Florida Department of Law Enforcement (FDLE). I have done ethics training for FDLE and am impressed by its commitment to professional development of police. Nonetheless, in its basic training program, there is room for more study of the Constitution— whether by adding hours or by replacing some items in the present curriculum—thus increasing the quantity and quality of time necessary to make the police personnel constitutionally literate to the extent this book proposes. FDLE’s Basic Recruit Training Curriculum is divided into two parts: law enforcement and high liability. There appears to be no treatment of the Constitution in the second part. Part One, law enforcement, has 12 courses, comprising 454 hours of instruction. Of these courses, the course titled “Legal,” is relevant to our discussion. Titles of the other courses include Interviewing and Report Writing; Fundamentals of Patrol; Calls for Service; Criminal Investigations; Crime Scene to Courtroom; Critical Incidents; Traffic Stops; and DUI traffic stops. The course titled “Legal,” runs 62 hours (14 % of Part One; 8 % of the program overall when one adds the 316 hours of Part Two). It has six units, the first two of which have constitutional components.


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Unit 1, Introduction to Law, has three lessons the first two of which are all about the Constitution. Lesson 1 looks at the Evolution of Laws. This corresponds to external themes and external history (Modules 3 and 4) in our proto-curriculum. Lesson 2 focuses on Constitutional law, under the topical headings of Basic Concepts of the Constitution, The Articles of the Constitution, and The Amendments of the Constitution. This lesson corresponds to Module I, part 1 of our proto-curriculum, requiring only a reading of the Constitution. Unit 2, Legal Concepts, has five lessons, three of which focus on the 4th Amendment. A fourth lesson focuses on the Miranda Warning, which relates to the 5th and 6th Amendments, that is the right against selfincrimination and the right to counsel, respectively. In terms of our protocurriculum, these lessons are a continuation of Module I, part 1. The remaining units in the course include Substantive Criminal Law, Civil and Criminal Liability, Response to Civil Issues, and Juvenile Law. Roughly a third of the course, “Legal,” incorporates the Constitution. This comprises approximately 11 hours, or 1 % of the basic training program. All of the topics in FDLE’s curriculum are important to police training, so there is no topic or course to discard and replace with something in the Constitution. It might be possible to incorporate the Constitution across the curriculum, including elements from any or all of our four modules, in treatment of the curriculum topics. For example, where the curriculum already examines the anatomy of the Constitution, it might put that anatomy into historical context (Modules II and IV). In other units in the course “Legal” there may be room to discuss the history of the idea of rights and the history of the idea of justice (Module IV). In the course “Crime Scene to Courtroom,” there might be discussion of the difference between the adversarial system of justice and the inquisitorial system. There might also be a discussion of the jury’s rights and responsibilities and the possibly ill effects of a constitutionally illiterate jury. Module III of our proto-curriculum includes these topics. Taking a different tack, given the wide range of police basic training hours (360–1800) across the 50 states, it would not be out of the ordinary for FDLE to add hours to accommodate the Constitution directly, offering a full course, for example, that includes all four modules of our proto-curriculum and devotes more time to the history and thoughts underlying the Constitution. FDLE appears to offer excellent basic training. But it could do more to enhance the constitutional literacy of the recruits who will, at the completion of their training, enter the profession by taking an oath to the Constitution.


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FDLE (Florida Department of Law Enforcement 2015) also offers 45 advanced training courses and 30 specialized training courses. None of these is about the Constitution or suggests any topics that our fourmodule proto-curriculum covers. Military In the USA all military personnel take an oath upon enlistment or upon beginning officer training. As one website (Be ready to raise your right hand 2016) puts it: Everyone who joins the military has one thing in common, they must swearin by repeating the enlisted or officer Oath. The Oath of enlistment is something that every service member must promise and adhere to for his/her entire military career. From the Oath, you can see that you will be defending the Constitution—not a person. Discipline and accepting orders is sworn to. Finally, you vow to face the UCMJ (Uniform Code of Military Justice) should any disputes arise.

This site adds Before you raise your right hand, make sure you understand what you are swearing or attesting to. The oath of enlistment should not be taken lightly, you will be bound by it for the next 4 to 6 years at a minimum.

But description of military training curricula reveals little or no effort to explain or enforce this commitment to defending the Constitution. Typical of all the US military branches in this regard is the US Army‘s (2016a) basic training. This training lasts 10 weeks and consists of three phases: Red, White, and Blue. Topics include, field exercises; marksmanship training and repelling exercises; and weapons training and night infiltration, respectively. Advanced individual training (United States Army 2016b) is available from any of 17 schools, but none of these offers anything about the Constitution. • • • • • •

Adjutant General School Air Defense Artillery School Aviation Logistics School Chemical, Biological, Radiological, Nuclear School Department of Defense Fire Academy Engineer School


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Field Artillery School Financial Management School Infantry School Military Police School Ordnance Mechanical Maintenance School Ordnance Munitions and Electronics Maintenance School Quartermaster School Signal Corps School Transportation School US Army Armor Center US Army Intelligence Center

Among these one might expect the Military Police School to bring up the Constitution, but there is no indication that the school does so. As the website (United States Army 2016c) for this school explains: Job training for military police requires 20 weeks of One Station Unit Training and on-the-job instruction in police methods. Part of this time is spent in the classroom and in the field.

Some of the skills you’ll learn are: • • • • •

Basic warrior skills and use of firearms Military/civil laws and jurisdiction Investigating and collecting evidence Traffic and crowd control Arrest and restraint of suspects

It would be appropriate to include material from all four modules of our proto-curriculum in the training of military police. And since all military personnel swear an oath to the Constitution, the people responsible for their training should ensure that the trainees learn enough about the Constitution to fulfill their oath intentionally and to assess how well they are doing along the way. Lawyers The oath of office is a condition of admission into state bar associations in the USA. An Oath on Admission is also required of any attorney seeking to practice in federal court:


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I, do solemnly swear (or affirm) that as an attorney and as a counsellor of this court I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States. (United States Courts 2016)

To practice before the US Supreme Court requires taking the oath again: Each applicant shall sign the following oath or affirmation: I, do solemnly swear (or affirm) that as an attorney and as a counselor of this Court, I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States. (Supreme Court of the United States 2016)

One would expect law school graduates to have studied the Constitution diligently and a review of American law schools suggests that that is the case. How much exposure a student gets depends on the school and on the student’s concentration within the school’s program. At the University of Baltimore Law School (2016), for example, students are required to take six credits in Constitutional law in a program that requires 87 credits over all. Students may take two additional courses in Constitutional Criminal Procedure. As the course descriptions indicate, a student who takes all four courses receives a worthwhile education on the Constitution: • Constitutional Law I: LAW 650, 4 credits – An introduction to the structure of the US Constitution and the powers, rights, and liberties it defines. Topics include judicial review; limitations on judicial power; nature of and separation of powers; federalism, including the Commerce Clause and the 10th Amendment; state action; procedural and substantive due process; and equal protection. – Constitutional Law II: LAW 650, 4 credit – An introduction to the structure of the US Constitution and the powers, rights, and liberties it defines. Topics include judicial review; limitations on judicial power; nature of and separation of powers; federalism, including the Commerce Clause and the 10th Amendment; state action; procedural and substantive due process; and equal protection.


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• Constitutional Criminal Procedure I: LAW 711, 3 credits – An examination and analysis of constitutional principles governing the admissibility of evidence in criminal proceedings and regulating the conduct of criminal prosecutions, primarily focusing on the pre-trial stages. Subjects include the exclusionary rule; probable cause; arrest; search and seizure; electronic surveillance; compelled self-incrimination, immunity, and confessions, identification, the right to counsel, preliminary hearing and pre-trial motions. • Constitutional Criminal Procedure II: – A continuation of the study, begun in Constitutional Criminal Procedure I, of constitutional principles governing the conduct of criminal prosecutions, with special emphasis on the trial and posttrial stages. Subjects include the charging process; bail and pretrial release; discovery; double jeopardy and collateral estoppel; speedy trial; public trial; jury trial; guilty pleas and plea bargaining; the right to confrontation; sentencing; appeals; and collateral post-conviction remedies. Students who take all four of these courses will have encountered most of the material that Module I (internal themes) of our proto-curriculum would cover and much of Module II (internal history). In other words, these four courses cover the anatomy and physiology of the Constitution. These students would benefit even more, however, if the curriculum included more material of the sort that our Modules III and IV, external themes and external history, cover. Police officers and lawyers do a lot of training or course work before they take the oath of office. Military personnel take the oath of office just before entering the training that should help them fulfill that oath. Whether that training or education matches the depth of importance of the oath remains an open question. Then there are the people who take the oath but do not require relevant education before or after the oath. These include, for example, most elected officials; many appointed officials, such as judges and cabinet secretaries; and many federal employees. Is it not unfair to ask people to promise to uphold and defend the Constitution when they have little idea what it is they are promising to uphold and defend? Why not insist that


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everyone who takes the oath take a preparation or refresher course on the Constitution? Such a course could include one or more of the elements of our proto-curriculum. Given online technology, this shouldn’t be too complicated. Then the person about to be sworn would have to pass a simple test. The details could be worked out statutorily or by Amendment. As columnist George F. Smith (2001) asks, in his support of the Liberty Bill Act: Wouldn’t it be nice if the Constitution had an amendment requiring officeelects to prove they actually understood the document they solemnly swear to defend? That even if elected, they could not take office without earning a minimum grade on an exam? Sounds a little like school, doesn’t it?

One objection to this idea is that it might prevent the winner of an election from taking office or prevent an otherwise able appointee or employee from getting the job. But this objection either presumes too difficult a test or too incapable the person of achieving an appropriate level of constitutional literacy. Neither of these presumptions is reasonable. We already have one test that has been worked on and applied millions of times: the test for US Citizenship (United States Citizenship and Immigration Services 2016). Several of the questions on this test pertain to the Constitution. There is, after all, no constitutional right to be constitutionally illiterate, especially for anyone who swears an oath to the Constitution. One more point. The constitutional requirement to take the oath does not specify whether the oath takers must raise their hand or put a hand on a document. Legend has it that Washington took the oath with his hand on a Bible and added the plea “so help me God.” There is disagreement about this, but the tradition has stuck. Why not insist that if one is going to place a hand on a document during the swearing in the document be the Constitution? (Badash 2015). Non-sworn Stakeholders Throughout this book, we have divided the stakeholders of constitutional literacy into sworn and non-sworn. So far in this chapter, we have focused on a proto-curriculum for promoting, and improving, constitutional literacy and have spent the better part of the chapter looking at constitutional training and education—or lack thereof—for sworn officials. But


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we began this chapter looking at a grassroots campaign, run by a nonsworn group of middle schoolers, with sage guidance from their teacher, for promoting constitutional literacy by putting the Constitution or some parts of it on the back of the $1 bill. We are at a point where we want to consider further how we might promote constitutional literacy among the non-sworn. Formal Education One approach would be to distinguish between efforts involving formal education and efforts not involving formal education. As Law Professor Laura McNabb (2013) notes, there are two broad categories of civics education: K-12/post-secondary and outside of the school system. The former, she argues, has greater potential, because every capable child must receive education at the level. In this spirit, the Michigan legislature is considering making the reading of the Constitution mandatory in public schools (Haq 2015). At the same time, Gary Schmitt and Cheryl Miller (2013), from the American Enterprise Institute, report The US Department of Education’s decision to indefinitely postpone nearly all national exams in civics and US history eliminates the only objective gauge of whether students are learning basic US history and the essential skills need to be good citizens. Sadly, we already know they aren’t.

On the other hand, the Marshall-Brennan Project has a had a lot of success since 1999 in encouraging second- and third-year law students, along with LLM students, to teach public high school students in Maryland and D.C. about juvenile justice and constitutional law (Raskin 2013). At this writing, the program is beginning to expand across the country. The emphasis in these courses is to raise students’ consciousness about their rights and their role as citizens in the USA. While there might be room for more of such education for students involved in this project, elements of which we might identify from the four modules of our proto-curriculum, one has to congratulate the program’s founder, Prof. Jamin Raskin, and its participants on an exemplary initiative for promoting constitutional literacy among public schools students. But more could be done. Beginning with the teachers, what if teachers in public school had to swear an oath to the Constitution? New  York, for example, has this requirement:


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Education Law, Section 3002, requires that citizen teachers serving in the public schools of New York State file a statement to support the Constitution of the United States of America and the Constitution of the State of New York. It is unlawful to permit a person to serve as a teacher in violation of Section 3002. (OCM BOCES 1999)

So does Nebraska, although its 1951 rhetoric seems over the top: All persons engaged in teaching in the public schools of the State of Nebraska and all other employees paid from public school funds, shall sign the following pledge: I, …, do believe in the United States of America as a government of the people, by the people, for the people; whose just powers are derived from the consent of the governed; a democracy in a republic; an indissoluble nation of many sovereign states; a perfect union, one and inseparable; established upon those principles of freedom, equality, justice and humanity for which American patriots sacrificed their lives and fortunes. I acknowledge it to be my duty to inculcate in the hearts and minds of all pupils in my care, so far as it is in my power to do, (1) an understanding of the United States Constitution and of the Constitution of Nebraska, (2) a knowledge of the history of the nation and of the sacrifices that have been made in order that it might achieve its present greatness, (3) a love and devotion to the policies and institutions that have made America the finest country in the world in which to live, and (4) opposition to all organizations and activities that would destroy our present form of government. (Nebraska Legislature 2016, Neb. Rev. Stat. 79-8, 108)

The ACLU is suing a Nebraska school district for enforcing this law, where most school districts in Nebraska have not enforced it. The ACLU argues that it is a violation of a teacher’s free speech, which may include expressions of dissent against the government (Owens 2015). The US Supreme Court seemed to have settled the matter in 1972, when it declared that “requiring public employees to take a general oath to the Constitution is not unconstitutional so long as there is no requirement for a specific action beyond the oath and that the oath at most expresses a commitment to abide by our constitutional system” and “a commitment not to use illegal and constitutionally unprotected force to change the constitutional system” (Cole v. Richardson 1972).


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Whether teachers should take an oath, it seems reasonable to require schools to promote constitutional literacy somehow, whether by a specific course or “across the curriculum.” Social studies teacher, Christian Garcia argues for teaching the Constitution across the high school curriculum as a means to meeting standards in several academic areas—government, history, literature, economics- and reinforcing to the students its importance (Garcia 2015). The proto-curriculum offers one way to organize the set of topics and to pick from those topics as necessary. Since civics was a mainstay of secondary education for a long time, but the absence of constitutional literacy is commonplace, one wonders whether there isn’t a better way to teach civics so that high school graduates retain it better. Teaching to the citizenship test and requiring students to pass it before graduating it might be a good means to this end. Non-formal Education We have given some thought to ways of promoting constitutional literacy in formal education. But much of what we learn comes from outside of formal education. Political scientist Arthur Lupia argues convincingly that voters would be more engaged in supporting or rejecting new laws, if they were educated about these laws in ways that make the matter personal (Lupia 2015). Lupia, puts the onus especially on teachers, journalists, and advocates to find ways to make the political concerns of the day personally important to their audiences. While Lupia is talking about political issues broadly, such as global climate change, we can easily make his argument work for us in our attempt to promote constitutional literacy. The typical voter may be uninterested in civic literacy, but convince her that it is essential to voting wisely and otherwise getting the “best bang for her buck” as a citizen, and watch her interest climb. At the same time help her see that constitutional literacy will serve her in pursuing this interest. How might we promote constitutional literacy informally, targeting people who cannot or will not study the Constitution formally, but still plan to be an active member of a society that the Constitution governs? We opened this chapter with a good idea: the Liberty Bill Act. By enacting this bill the US Government would show its support for constitutional literacy among citizens and interested non-citizens alike. Online resources already exist and more might be developed, with sufficient marketing to draw people’s attention to the sites and to encourage their participation. Apps and contests might make this approach even more effective.


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Elder hostels and non-credit programs, such as Osher and Odyssey at Johns Hopkins University, attract people who want to learn for the sake of learning. These organizations could take a lead in promoting constitutional literacy by offering courses that map to the four modules of our proto-curriculum. Interested parties, with a push from the public, might create public service announcements on a regular basis. Two relevant examples here are NBCs “The More You Know” public service announcements and School House Rock—short animated videos that taught about history, science, and politics. Many people that I encounter remember seeing the School House Rock offering “I’m Just a Bill,” which addresses the creation and passing of a bill in Congress (Frishberg 1975). While the target audience for these musically catchy lessons was school aged children, they often resonated—and stuck—with audiences of all ages. The League of Women Voters has quite a platform and could do more to promote constitutional literacy. Through social media, printed media, conferences, and get-out-the-vote efforts, the leaders of the League have a wide audience. The Constitution is relevant to almost every topic, issue, and initiative that the League puts forth. But the constitutional elements tend to be presumed rather than expressed. The League is in a position to offer people many opportunities to develop their constitutional literacy. We might also take Constitution Day, September 17, more seriously, working through government and corporate America to make the day as important as or more important than July 4. Again the proto-curriculum gives us an idea of how we might organize topics surrounding the celebration of Constitution day for the purposes of public discourse about the Constitution.

SUMMARY This chapter has proposed a model proto-curriculum along the lines of the test by which we have demonstrated the lack of constitutional literacy and by which we have offered one way to assess constitutional literacy. This protocurriculum has four modules: internal themes, internal history, external themes, and external history. This chapter also has proposed suggestions for organizing each module and for possible content in each module. Next came some thought about who might benefit from application of this proto-curriculum. Both sworn and non-sworn stakeholders could benefit from exposure to any or all of these modules either through formal education or informal education.


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In the next chapter we conclude with a look ahead in pursuit of constitutional literacy.

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United States Office of Personnel Management. 2016. Historical federal workforce tables: Total government employment since 1962. OPM.gov. https:// www.opm.gov/policy-data-oversight/data-analysis-documentation/federalemployment- reports/historical-tables/total-government-employmentsince-1962/. University of Baltimore Law School. 2016. Course offerings. Accessed 22 Jan 2016. http://law.ubalt.edu/academics/jd-program/courseofferings/index.cfm. Washington, George. 1796. Farewell address. American Daily Advertiser, September 19. Accessed 22 Jan 2016. http://avalon.law.yale.edu/18th_century/washing.asp. Winthrop, Jonathon. 1630. City upon a hill. [Sermon]. https://www.mtholyoke. edu/acad/intrel/winthrop.htm. Wisconsin v. Mitchell, 508 U.S. 476 (1993).


CHAPTER 7

Conclusion

From the opening of the Constitutional convention to the present, American political conversation invoking the Constitution has been raucous, robust, and frequently significant in its impact on public policy and on individuals’ lives. How much better would things be if many more stakeholders in this conversation were constitutionally literate? This book is a plea for that literacy, adding its voice to a chorus that seeks to demonstrate the value of constitutional literacy and to suggest improvements. This chapter summarizes the book’s efforts and suggests next steps. As Chap. 2 states, a useful working definition of constitutional literacy is 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 on a continuum from basic literacy to the scholarly literacy that one would expect of the Supreme Court justices. The lack of constitutional literacy, even at the highest levels of sworn professionals, is easy to demonstrate. Chapter 1 began with quotations from US Representatives, judges, and opinions leaders who confused the

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Constitution with the Declaration of Independence. We saw subsequently that the two documents have little in common both theoretically and in their purposes. The two documents disagree on the nature of law, the nature of rights, and the nature of justice. The purpose of the Declaration was to articulate America’s reasons for splitting from England, and possibly to recruit colonial soldiers into the revolution against the crown. The purpose of the Constitution was to develop a national military and a national system for collecting revenue from the states. To appease those who were reluctant to hand over personal or state power, the Constitution recognizes certain rights, but this statement of rights was not the Constitution’s primary purpose. Moving beyond anecdotal evidence of sworn officials’ constitutional illiteracy, 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 means of effecting that increase. Second is a review of police basic training programs, with a focus on courses, units, or topics that refer to the Constitution specifically or obliquely. The third bit of evidence for a pervasive lack of constitutional literacy comes from a test that I have administered over the years, most often to students at the beginning of my course, Applied Ethics, the Constitution, and Leadership. Selecting five cohorts, consisting of 90 people, the results show an average score of 36 %, and an average of 45 % getting any one question, right. It is harder to demonstrate the practical and moral value of constitutional literacy than to demonstrate the lack of it. Anecdotal and historical evidence suggest that sworn officials and non-sworn stakeholders alike go through their professional and civic lives fine without having devoted much time to studying the Constitution. One tack is to argue a priori for the value of constitutional literacy. All people entering a profession by taking an oath to the Constitution have a moral duty to know the Constitution sufficiently to determine whether they are fulfilling the oath, that is, to ensure that they are not breaking their promise. In practical terms, it is easier to do our jobs when we know what we are doing. All people who invoke the Constitution to justify their assessment of a public policy decision or to justify their vote in an election have a civic duty to know what they are talking about. In practical terms, their civic lives will run more smoothly if these people know what they are doing.


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Chapter 4 gathers up the discussion of the value of constitutional literacy by arguing for the necessity of virtue. Both sworn and non-sworn should engage their constitutional lives with integrity. Integrity is a matter of integrating the cardinal virtues of courage, justice, temperance, and prudence into one’s life. Virtue, in general, is the ability habitually to know the good and to do the good. The good is the mean between the extremes of deficiency and excess. Constitutional literacy as people exhibit it verbally or behaviorally, then, is a matter of virtue. To convince people of the a priori value of constitutional literacy does not settle the question of its efficacy. For example, are constitutionally literate police better at their job than their constitutionally illiterate counterparts? If statistics suggest an affirmative answer, is constitutional literacy the cause? Does constitutional literacy improve government-citizen relations? Does constitutional literacy lead to better public policy? Before gathering the data toward answering these questions, we need an effective means of assessing constitutional literacy. Chapter 5 offers a way of organizing the questions, checking for literacy in four areas relative to the Constitution and asking questions at three levels of difficulty: easy, medium, and hard. How reliable this model is overall at determining constitutional literacy, and how well each question is written, remain as open questions, pending further study of the model itself. Using the model for determining the present state of constitutional literacy among those it tests, Chap. 6 moved to a proto-curriculum to use toward promoting and improving constitutional literacy. This proto-curriculum may be useful in formal education and outside formal education. Pieces of it, as well as the levels of difficulty it accommodates, can serve schools K-12, colleges, training academies, in-service training, and professional continuing education. This proto-curriculum can also serve as a foundation for public service announcements and other forms of advocacy for constitutional literacy. Of course, there is a difference between promoting anything and improving it. Thus, any effort in this vein would have to be assessed on two counts: how well it is getting the word out, and whether it is leading to improvement in constitutional literacy. Even where there is marked improvement following these promotional efforts, the question of cause and effect remains open. This book aims at contributing to the conversation about constitutional literacy, while acknowledging other efforts to that end, many of which deserve more attention. One of these is the student-led Liberty Bill Act, which seeks to put some part of the Constitution on the back of US $1 bills.


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As with other efforts, its potential efficacy remains uncertain until the effort has been made and given a sufficient amount of time to work. But vending machine lobbyists and certain aesthetic concerns aside, the Liberty Bill Act is a remarkable contribution to our thinking about constitutional literacy. The scope and limits of this book point to two sorts of next steps: those that follow this book’s lead and those that might contribute to constitutional literacy in other ways. Following this book’s lead, one might gather more evidence of constitutional illiteracy. Evidence probably exists in public speeches, editorials and op-eds, letters to the editor, transcripts of call-in programs, and rationale in proposed legislative bills. As this book was nearing completion an article appeared in Time magazine in which Michael Scherer, Time magazine’s political correspondent in Washington, DC, speaks of the founders “forg[ing] a union with safeguards: due process of law, inalienable individual rights and a byzantine electoral system that intentionally slowed fury and change” (Scherer 2015). Since the Constitution says nothing about inalienable rights, one hopes that Scherer is referring to both the Declaration and the Constitution here and has them distinct in his own mind. But the quote could be read as suggesting a conflation of the two. At a debate among Republican candidates for President, New Jersey Governor Chris Christie declared that evidence for the 2nd Amendment’s special importance is its having been the 2nd Amendment among the initial Amendments to the Constitution (Transcript of Republican Presidential Debate 2016). Christie is wrong. It was the 4th Amendment that Congress proposed, although the states failed to ratify the first two proposed Amendments, leaving one of them to be ratified 202 years later. It is not clear that placement of the original Amendments relative to each other has any significance whatsoever, but Christie is wrong in any case. Christie’s is a minor infraction, but since he brought up the issue it would be good for him to know what he is talking about as a sworn official. One might consider improved or new ways of assessing constitutional literacy over the four-part test that I have used. Even if one finds my method useful, there is work to be done to insure its validity and to administer it to more people. When I began this project, I used hard copies of the assessment, with no easier means of analyzing the answers than working through each one by hand. Future iterations of this project should use an electronic survey tool, such as Survey Monkey, which would permit random generation of questions, immediate feedback to the test-taker, and immediate and continually updated analysis of the data.


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Following this book’s lead, one might improve or revise the protocurriculum, developing more complete curricula to serve different populations. Such curricula would include rationales, course objectives, unit-by-unit topics and readings, and means of assessment. Research is necessary to see how effective any of this is. This research question itself needs refining, and specific research methods need articulation. All of this rests on the presumption that there is too much constitutional illiteracy and that the more stakeholders are constitutionally literate, the better for them and for the greater good. Stepping outside this book, one might study material that already exists whose primary purpose is to promote constitutional literacy. This material will include texts that argue for the value of constitutional literacy and many works that seek to contribute to people’s constitutional literacy. This material may also include curricula from schools and training academies that purport to teach the Constitution. Comprehensive evaluation of any of this material will assess its accuracy, thoroughness, and level of difficulty. The evaluation would identify any biases—political, cultural, religious, or philosophical. And these evaluations would include suggestions for improvement. It would be interesting to put this study in a broader context, looking at the corresponding situations in other countries. How many countries have Constitutions? In each of these who, if anyone, must swear an oath to that Constitution before entering into a profession? What is the current status of constitutional literacy in that country? How do we know? If the level of constitutional literacy is low, is there any evidence that life in that country would be better if the constitutional literacy were higher? The framers of the US Constitution, not trusting in majority rule, seemed to have taken the lack of constitutional literacy for granted among the citizenry and did little to promote it. Instead, the framers developed a system of government that protected it against the inevitable constitutional illiteracy of the populace. The framers also appeared to presume adequate constitutional literacy among the government’s leaders, although even here the framers put in a series of checks and balances. Over time, more people became eligible to vote: Black men, women, poor people, citizens of DC, and 18-year-olds. This suggests a popular move toward including more people formally in the processes of the government. At the same time, social and political life has become more complicated, with technology leading the way in opening up the world and making vast amounts of information available that would have been unavailable or


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much harder to access in the absence of this technology. Thus, both sworn and non-sworn stakeholders face professional and civic challenges that call for adequate constitutional literacy, if they do not want to rely solely on the chance that their decisions will be the right ones. What counts as constitutional literacy, let alone adequate constitutional literacy, is a matter for further discussion. That it is imperative in this age of global politics; increased access to information, both accurate and inaccurate; and rapidly changing mores is a given.

REFERENCES Scherer, Michael. 2015. Donald Trump. Time, December 21, 104–114. Transcript of Republican Presidential Debate. 2016. New York Times, January 15. http://www.nytimes.com/2016/01/15/us/politics/transcript-ofrepublican-presidential-debate.html?_r=0.


INDEX

A abortion, right to, 25, 31, 32, 79 Abramson, Jeffrey, 104, 105 absolutism, 96, 102 accuser, right to face, 32, 88, 91, 135 ACLU. See American Civil Liberties Union (ACLU) active liberty, 165 Adams, John, 10, 28, 66, 69, 144, 151, 153, 166 Adams, John Quincy, 69 Addington, Lynn, 52, 94 Adler, John, 83 adversarial system, 33, 89–92, 210 affirmative action, 200 Affordable Health Care for America Act, 130 Agel, Jerome, 29 Ahranjani, Maryam, 52, 95 Alito, Samuel, 83, 111, 165 Allen, Arenda Wright, 2, 50 amendment process, 19, 29, 111, 163 America, a Christian nation, 131, 150

American Civil Liberties Union (ACLU), 79, 217 American Enterprise Institute, 216 American exceptionalism, 201 Annenberg Public Policy Center, 51, 53, 71 anti-commandeering rule, the, 142 Applebaum, Yoni, 111, 112 Applied Ethics, the Constitution, and Leadership, 4, 17, 50, 61, 123, 226 argumentum ad populum, 97 Aristotle, 5, 26, 27, 95, 100, 102, 105, 203 Article I, 18, 120, 129, 136, 138, 142, 146, 160, 189 Article II, 19, 86, 136, 151, 172, 173, 189 Article III, 19, 90, 136, 189 Article IV, 187, 189, 190 Article V, 19, 81, 155, 163, 187, 189, 190 Article VI, 141, 158, 187, 189, 190 Article VII, 187, 189, 190 Articles of Confederation, 18, 20, 21, 65, 127, 129, 130, 161, 191, 194–6

© The Editor(s) (if applicable) and The Author(s) 2016 C. Dreisbach, Constitutional Literacy, DOI 10.1057/978-1-137-56799-4

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INDEX

assembly line justice, 91 Athenian democracy, 167, 203 attainder, bill of, 20, 189 attorney, right to, 9, 162 Atwood, James, 44 autonomy, individual, 78 Azzize of Clarendon, 134

B Babcock, Barbara, 164 Badash, David, 215 Baker v. Carr, 24, 68 Baltz, Shirley, 194 Baradaran, Shima, 141 Barber, Benjamin, 168 Barker v. Wingo, 135 Barron, Jerome, 199 Barron v. Baltimore, 151, 152, 198 basic training army, 211, 212 police, 4, 9, 53–8, 71, 208–10 Bayles, Michael, 5, 103 bear arms, right to, 9, 23, 31, 43–8, 64, 162, 164, 190 Bennett, Stephen, 51 Bennis v. Michigan, 164 Benton, Michael, 144 Be ready to raise your right hand (website), 211 Berger v. New York, 34 Berlin, Isaiah, 31 Bernstein, Richard, 119, 120, 121 Beshear, Steven, 79, 80 Bevin, Matt, 82 Bill of Rights, 23, 54, 68, 78, 119, 121, 129, 144, 148, 151–3, 158, 168, 169, 187, 192, 197, 204 Blinder, Alan, 80 Bloom, Sol, 144 Blue & Gray Taxi Cab Company, 28 Boaz, David, 50

Boehner, John, 1–3, 50 Boston Tea Party, 11 Bowman, B., 83 Boyd, Julian, 167 Boyer v. Louisiana, 136 Bradley, Joseph P., 172 Bradwell v. Illinois, 69, 171, 172 Branch v. Texas, 171 Breaking new ground, 172 Brennan, William, 171 Brewer, David Josiah, 171 Breyer, Stephen, 37, 46, 165, 174, 198 Brown v. Board of Education, 24, 25, 165, 200 Bunning, David L, 79, 80 Bureau of Justice Statistics, 175 Burger, Warren, 48 Burr, Aaron, 151 Bush, Jeb, 84 Bush v. Gore, 172, 174 Bush v. Palm Beach County Canvassing Board, 173 Byrd, Robert, 122

C Cantor, Eric, 183 capitalism, 160, 197, 201 cardinal virtues, 100, 102, 227 Caudill v. Scott, 152 Center for American Progress, 1, 2 Center for Civic Education, 12 Chamberland, Michele, 79 Chappell, Allison, 208 Child Labor Amendment, 154 Christie, Chris, 228 Church of the Holy Trinity v. United States, 131 City of Boerne v. Flores, 81 City upon the Hill, 201 civic literacy, 12, 218 Civil Rights Act of 1866, 110


INDEX

Civil War, 37, 153, 188, 192, 201 Clinton, Hillary, 83 Clymer, A. George, 196 Coffin v. United States, 141 Cogan, Neil, 23 Coke, Sir Edward, 134, 135, 204 Cole, David, 143 Cole v. Richardson, 217 Coleman v. Miller, 122 Commerce Clause, the, 160, 192, 213 common law, 10, 24, 90, 104, 190, 198, 199–200, 204 congressional salaries, 120, 121, 136, 197 Connecticut Compromise, 196. See also Great Compromise consequentialism, 96–8 Constitution anatomy of, ix, 12, 13, 17, 19, 38, 49, 58, 61, 176, 187, 210, 214 physiology of, ix, 12, 13, 38, 49, 58, 61, 214 preamble to, 1, 2, 21, 27, 46, 85, 111, 157, 163, 183, 184, 189, 198, 206 Constitutional Convention, 7, 19, 20, 22, 23, 24, 51, 60, 65, 66, 112, 120, 121, 128, 129, 139, 144, 148, 161, 193, 194, 195, 204, 225 constitutionalism, 206 constitutional literacy assessing, 4, 6, 7, 61, 86, 119–77, 186, 227, 228 definition of, 4, 12–17, 38, 49, 60, 102, 225 external history, 6, 70, 124, 126, 165–76, 186, 203–7, 219 external themes, 6, 124–6, 156–65, 176–203, 205, 219 improving, 4, 7, 183–220, 227 internal history, 6, 124–6, 143–50, 176, 186, 193–7, 219

233

internal themes, 6, 63, 124–7, 133, 176, 186–93, 219 lack of, 3, 4, 6, 16, 38, 43–71, 94, 102, 113, 126, 137, 176, 219, 225, 226, 229 moral value, 4, 71, 84, 89, 95–103, 113, 226 nature of, 4, 9–38 practical value of, 84–95, 103, 104, 113 test for, 6, 124 value of, 4, 6, 71, 77–113, 122, 176, 225–7, 229 Constitution Day, 219 Cook v. Morrill, 152 Cooper v. Aaron, 24, 68, 158, 159 Corwin, Thomas, 154 Coshnear, Lawrence, ix, 12, 61 counsel, right to, 23, 29, 32, 88, 134, 190, 200, 210, 214. See also attorney, right to courage, virtue of, 100, 101, 227 Cramer v. United States, 128 creationism, teaching of, 159 Crimmins, Charles J., 94 Cruz, Ted, 81 C-Span, 1 Cyrus Cylinder, the, 204 Cyrus King of Persia, 204

D Danbury Baptist Association, 149 Davis, Kim, 77–84, 89, 92, 95–7, 111 Declaration of Independence, 1–3, 17, 18, 26, 27, 30–3, 35, 51, 58, 70, 127, 128, 132, 133, 144, 156, 166, 191, 194, 196, 203, 226 Declaration of Sentiments, 156 Declaration of the Rights of Man, 140, 192


234

INDEX

definition analytic, 14–15, 17 dictionary, 14–17 ostensive, 4, 14, 16–17, 38, 225 stipulative, 14, 15, 17, 38 democracy direct, 168 representative, 168 Democratic-Republican Party, 151, 153 Democrats, 153 Denver University Law Review, 52 deontology, 96, 98, 99–100 de Vogue, Ariane, 82 Diamond, Shari Seidman, 109 Dienes, C. Thomas, 199 disseised, 104, 132 District of Columbia, et al. v. Heller, 43–46, 48, 49, 64, 152, 164 Dorsen, Norman, 198 Draco’s code, 168, 194 Dred Scott v. Sandford, 25, 29, 110, 159 due process, 9, 51, 64, 78, 88, 90, 91, 141–3, 171–3, 188, 190, 199, 213, 228 right to, 142 Dunn, Christopher, 158 Durbin, Dick, 50

E Edwards, George, 112 egalitarianism, 33, 34 egoism, 96, 97 Eighteenth Amendment, 121 Eighth Amendment, 67, 164 Eleventh Amendment, 162 Ellsworth, Oliver, 121 English Bill of Rights, 23, 168, 169, 192, 204 Enlightenment, the, 206 Enmund v. Florida, 201 Epperson v. Arkansas, 159

Equal Protection Clause, 67, 78, 172–4 equal protection, right to, 9, 64, 78, 143, 188, 190, 213 Equal Rights Amendment, 155 Establishment Clause, the, 159, 192 ethics, professional, 5, 95, 102 Evolution of American political parties, 153 excises, 19 executive branch, 22, 33, 82, 85–90, 136, 161, 165, 187, 199, 201 Ex Parte Bollman, 128 ex post facto, 90, 189

F fallacy of denying the antecedent, 47, 48 Falwell, Jerry, 2, 50 Farmers Loan and Trust, 130 Farris, Michael, 13 FDLE. See Florida Department of Law Enforcement (FDLE) Federalist Party, 151, 153 Federalist, The, 21, 23, 24, 69, 89, 128, 136, 147, 160, 161, 166, 196, 201 Felony Murder Rule, 201 Fifteenth Amendment, 138 Fifth Amendment, 9, 134, 192 Finkel, Norman J, 108 Finkelman, Paul, 167 Fiorina, Carly, 84 First Amendment, 9, 32, 67, 79, 107, 110, 111, 119, 120, 131, 159 Florida Department of Law Enforcement (FDLE), 209–11 Foley, Tom, 122 Fonda, Henry, 106 Ford, Gerald, 69


INDEX

Fourteenth Amendment, 9, 25, 67, 78, 83, 90, 93, 110, 141, 151–3, 159, 171–3, 197, 198 Fourth Amendment, 9–12, 38, 64, 67, 88, 164, 200, 210, 228 Franco-American Alliance, 144 Franke, Katherine, 83 Frank, Jerome, 28 Franklin, Benjamin, 32, 121, 144, 196 Frantzich, Stephen, 122 free speech, right to, 23, 32, 110, 159, 169, 170, 200, 217 French Revolution, 206 Friederich, Carl Joachim, 203 Frishberg, Dave, 219 fundamentalism, biblical, 123 Furman v. Georgia, 170, 171

G Garcia, Christian, 218 George III, King, 32 Gerry, Elbridge, 120 Gettysburg Address, 18 Ginsberg, Ruth Bader, 46, 174 Gitlow v. New York, 152 Gladstone, William, 37 Glossip v. Gross, 165 God, 2, 3, 10, 26, 30, 77, 80, 97, 110, 144, 149, 156, 191, 201–3, 215 Goesaert v. Cleary, 69, 171, 172 Goldberg v. Kelly, 201 Graham, A., 80 Graham, Lindsay, 84 Great Compromise, 23, 24, 196 Greenberg, Morton, 29 Gregg v. Georgia, 170, 171 Griswold v. Connecticut, 79

235

H Haig, Alexander, 3, 50 Hamilton, Alexander, 21, 69, 89, 121, 129, 147, 161, 166, 195, 196 Hammurabi, Code of, 132, 133, 192, 203 Hampton, Joe, 82 Hanna, Jason, 81 Hans v. Louisiana, 162 happiness, pursuit of, 1, 2, 18, 26, 30–3, 156 Haq, Husna, 51 Harding, Warren G., 175 Harlan, John Marshall, 157 Harris, Benjamin, 147 Harris, Katherine, 173 Hart, Melissa, 12, 52 Haupt v. United States, 128 Heller, Dick, 44, 45 Henchman, Joseph, 130 Henry II, King, 134 Heritage Foundation, 138 Heston, Charlton, 44 Hobbes, Thomas, 27, 67, 202, 204 Hofman, Darra, 94 Holmes, Oliver Wendell, Jr., 28 Holzer, Harold, 154 Hoyt v. Florida, 172 Huckabee, Mike, 81 Hudson v., McMillian, 164 Human Rights in Ireland, 13 Hurtado v. California, 152

I Illinois v. Perkins, 162 I’m Just a Bill, 219 inquisitorial system, 90, 210 Institutes of the Lawes of England, 134 integrity, 5, 96, 102, 103, 113, 145, 227 intentionalism, 123, 163


236

INDEX

Ira C. Rothgerber Jr. Conference, 52 Israel, Josh, 82, 84

J Jackson v. Georgia, 171 Jacobson, Henning, 157 Jacobson v. Massachusetts, 157, 198 Jay, John, 21, 69, 161, 166, 196 Jefferson, Thomas, 26–8, 50, 51, 69, 94, 143, 144, 149–51, 167, 202 Jensen, Erik, 147 Jim Crow laws, 97 Jindal, Bobby, 81 Johnson, Andrew, 153 judge, the, 23, 28, 90, 91–2, 104, 106, 107, 159, 174 judicial activism, 158, 165 judicial branch, 19, 22, 82, 86, 92, 95, 136, 187, 201 judiciary, the, 89–90, 161 jury nullification, 108, 109 jury, right to, 67, 91, 104, 132, 134, 135, 141, 152, 176, 191 jury, the, 104–9, 175, 210 justice commutative, 33–5, 37, 205 distributive, 33–7, 205 legal, 33, 205 moral, 205 retributive, 33, 35, 37, 205 virtue of, 100, 107, 227

K Kalven, Harry, 109 Kant, Immanuel, 99, 100, 204 Kelly, Debra, 20, 138 Kennedy, Anthony, 78, 79, 83 Kennedy, John F., 200 King, Nancy, 105 Kipnis, Kenneth, 90–2

Kleinig, John, 108, 109 Klopfer v. North Carolina, 135 Kopel, David, 48 Kroll, Karen, 183, 184

L Langbein, John, 175 law enforcement, 17, 53, 61, 80, 86, 87, 89, 123, 126, 134, 176, 185, 209, 211 law, theories of, 18, 26, 35 lawyer, the, 89, 92, 185, 208, 212, 214 Leadership Conference on Civil and Human Rights, 155 League of Women Voters, 219 legal positivism, 26, 27, 36 legal realism, 26–9, 36, 199 legislative branch, 27, 85, 87, 136, 161 Leland, John, 148 Levine, James, 108, 109 Levinson, Sanford, 25 Levy, Leonard, 23 lex talionis, 204 libertarianism, 33, 34 Liberty Bill Act, 183–5, 215, 218, 227, 228 Liberty Counsel Law Firm, 80 Liberty Middle School, 183 liberty, right to, 1, 2, 26, 30–3, 37, 83, 85, 86, 143, 147, 149, 156, 157, 165, 166, 193 life, right to, 30, 31, 33 Limbaugh, Rush, 2, 50 Lincoln, Abraham, 153 Liptak, Adam, 80, 83 living Constitution, 37, 165 Locke, John, 26, 27, 67, 68, 202, 204 Londras, Fiona de, 13 Loving v. Virginia, 98 Lumet, Sidney, 106 Lupia, Arthur, 218


INDEX

M Madison, James, 21, 28, 51, 69, 128, 129, 136, 144, 147, 161, 168, 195, 196, 198 Magna Carta, 11, 23, 104, 132–4, 141, 168, 169, 192, 204 Mapp v. Ohio, 200 Marbury v. Madison, 24, 26, 28, 68, 158 Marbury, William, 28 marque and reprisal, letters of, 20, 189 marriage, same-sex, 2, 78, 82, 83, 96–8, 101 Marshall-Brennan Constitutional Literacy Project, 12, 13, 52, 94, 216 Marshall, John, 26, 28, 66, 152, 158 Marshall, Thurgood, 37, 163, 171 Mason, George, 69, 121, 166 Massachusetts Bay Colony Body of Liberties, 23, 169 Massaro, Toni Marie, 5, 13, 93 McCoy, Candace, 108, 109 McCulloch v. Maryland, 70 McDonald v. City of Chicago, 152 McNabb, Laura, 52, 216 Meese, Edwin, 158 Meeting of Commissioners to Remedy the Defects of the Federal Government, 194 Menville, Shayla, 78 Michigan legislature, 216 Milbank, Dana, 50 Military Police School, 212 military, the, 3, 33, 45, 129, 185, 208, 211, 212 Miller, Cheryl, 216 Miller v. Davis, 79 Mill, John, 33 Minneapolis & St. Louis R. Co. v. Bombolis, 152

237

Miranda v. Arizona, 24, 29, 32, 88, 162, 200 (see also Miranda warning) Miranda warning, 29, 162, 163, 210. See also Miranda v. Arizona modus ponens, 46–8 Monk, Linda, 26, 68, 172, 175, 201 Monroe Doctrine, 201 Montesquieu (Charles-Louis de Secondat, Baron de La Bréde et de Montesquieu ), 89, 204 Moody v. Daggett, 135 Moral Majority, 2 Morris, Robert, 196 Mott, Lucretia, 156 Mount, Steve, 153–5, 192

N National Constitution Center, 138 National Federation of Independent Business v. Sebelius, 130 National Rifle Association, 44, 48, 49 natural law theory, 26, 27, 35, 204 Nelson, Eric, 111 New Hampshire, vii, 23, 139 New Jersey Plan, 23, 24, 127, 196 Newman, Burton, 48, 49 New York, 1, 7, 21, 23, 34, 35, 129, 131, 139, 152, 156, 160, 161, 194, 196, 200, 216, 217 Nicomachean Ethics (Aristotle), 5, 26, 27, 95, 100, 102, 105, 203 Nineteenth Amendment, 19, 20, 137, 138, 156 Ninth Amendment, 19, 20 noble savage, 202 non-originalism, 163, 165 Nozick, Robert, 205


238

INDEX

O Oath on Admission, 212 oath to the Constitution, 3, 4, 34, 50, 53, 57, 61, 123, 198, 208, 210, 212, 215–17, 225, 226 Obama, Barak, 2, 82 Obamacare, 130. See also Affordable Healthcare for America Act Obergefell v. Hodges, 78, 79, 81–4, 98, 101, 102 O’Connor, Sandra Day, 175 originalism, 37, 123, 163–5 Otis, James T., 10–12, 20, 27, 33, 38 Owens, Eric, 217

P Palin, Sarah, 2, 50 Paterson, William, 196 Path of Law, The (Holmes), 28 Payne, Ed, 115, Pearson v. Yewdall, 152 Pelosi, Nancy, 1–3, 50 Perez-Pena, Richard, 80 Permanent Apportionment Act of 1929, 139 Petition of Right, the, 204 Phelps-Davis, Rebekah, 111 Phelps, Fred, 111 Phelps-Roper, Shirley, 111 Pinckney, C. C., 139 plea bargains, 91, 214 Plessy v. Ferguson, 24, 25, 29, 165, 199 Plyer v. Doe, 93 police, 4, 9, 24, 29, 30, 32–5, 44, 50, 53–8, 71, 87–9, 123, 162, 163, 198–200, 208–10, 212, 214, 226, 227 Pollock, Charles, 130 Pollock v. Farmers’ Loan & Trust Company, 130 Porter, G. H, 154

positive, 30–2, 36, 52, 80, 122 positive rights, 30–32, 36 practical wisdom. See prudence, virtue of President’s Commission on Law Enforcement and Administration of Justice, 89 presumption of innocence, viii, 91, 140 Printz v. The United States, 142 Prohibition. See Eighteenth Amendment property, right to, 34, 68, 83, 132, 143, 202, 205 proto-curriculum, 7, 177, 186, 208, 210–12, 214–16, 218, 227, 229 prudence, virtue of, 100, 101, 227 Public Safety Leadership, Division of, x, 17, 61, 123 Publius, 21, 147, 161 punishment, cruel and unusual, 65, 164, 165, 171, 190, 197

R Ragone, Nick, 152 Rakove, Jack, 194 Randolph, Edmund, 195 Raskin, Jamin, 52, 94, 216 R.A.V. v. St. Paul, 25 Rawls, John, 205 Read, George, 196 Reagan, Ronald, 3, 202 Reed v. Reed, 69, 70, 171, 172 regularianism, 96, 98, 99 Rehnquist, William, 159 relativism, 96, 102 religion, freedom of, 9, 32, 78, 81, 84, 99, 110, 131, 199, 204, 205 Religious Freedom Restoration Act (RFRA), 81 Republicans, 52, 153 Revenue Act, the (1894), 130


INDEX

RFRA. See Religious Freedom Restoration Act (RFRA) Rhode Island, 20, 66, 139, 195 Rhodes, P. J., 167 Rice, Condoleeza, 50 Richards, Leonard, 194 rights conferred, 30, 31, 36, 155, 157 inalienable/unalienable, 2, 27, 30–2, 36, 51, 156, 228 legal, 5, 25–7, 29, 30, 32, 35, 36, 78, 79, 83, 91, 93, 102, 105, 110, 138, 192, 199, 203, 204, 226 moral, 5, 26, 29, 30, 32, 35, 79, 84, 95, 102, 104, 105, 113, 201, 202, 205, 226 negative, 30–2, 36, 137 Roberts, John, 51, 71, 82, 110 Roe v. Wade, 25, 31, 32, 79 Roman Catholicism, 26, 27 Roman Republic, 168, 192, 203 Rousseau, Jean-Jacques, 202–4 Royal, K, 52, 94

S same-sex couples, 78, 79, 82, 96, 98, 101 Sanders, Bernie, 112 Sauls, N. Sanders, 173, 174 Scalia, Antonin, 37, 45, 46, 83, 159, 164, 165, 198 Scheflin, A., 108, 109 Scherer, Michael, 51, 228 Schmitt, Gary, 216 Schmoop Editorial Team, 144 School House Rock, 219 Schrader, David, 90 Second Amendment, 9, 23, 31, 43–9, 64, 152, 162, 164, 193, 228

239

self-incrimination, right against, 88, 162, 210, 214 Seneca Falls, New York, 1, 2, 156 separate but equal, 25, 165, 199 Seventeenth Amendment, 138, 197 Seventh Amendment, 104 Shays, Daniel, 194 Shays’ rebellion, 194 Sheppard v. Maxwell, 200 Sherman, Roger, 196 Shestokas, David, 134 Shorto, Russell, 205 Sidhu, Dawinder S., 95 Silversmith, Jol, 154 Singer, Peter, 30 Sixteenth Amendment, 129, 130, 139, 140 Sixth Amendment, 23, 32, 67, 88, 93, 104, 132, 134, 135, 141, 210 Slavery Amendment, 154, 189 Smith. George F., 215 Snyder v. Phelps, 110 social contract theory, 27, 202, 203 so help me God, 3, 77, 215 Solon’s code, 168 Somin, Ilya, 6, 51, 53, 94 Sons of Liberty, 11 Souter, David, 46, 174 Spanish-American War, 201 speech, freedom of, 9, 15, 23, 25, 32, 78, 107, 110, 152, 159, 169, 170, 200, 217 Speedy Trial Act of 1974, 135 speedy trial, right to, 88, 134–6 Stamp Act of 1765, 67 Stanton, Elizabeth Cady, 156 state action, 68, 157, 198, 199, 213 state of nature, 67, 202 States v. Miller, 45 Stevens, John Paul, 45, 46, 135, 142, 174 Stivers, Robert, 82 Story, Joseph, 24 Strauss, Betsy, 13


240

INDEX

Strauss, David, 165 strict constructionism, 29, 163, 164 subjectivism, 97, 98 succession, presidential, 3, 50, 188 Supreme Court, Florida, 173, 174 Supreme Court, New Jersey, 199 Supreme Court, United States, 4, 11, 21, 23–5, 28, 31, 34, 37, 44, 45, 49, 51, 61, 71, 78–82, 84, 93, 97, 98, 101, 109, 110, 119, 122, 128, 130, 131, 135, 136, 141, 142, 151, 152, 157, 159, 162, 165, 191, 193, 198, 213, 217, 225 sworn officials, 3–5, 7, 11, 17, 51, 53, 61, 70, 84, 87, 89, 92, 95, 102, 103, 127, 168, 215, 226

T Taney, Roger, 110 tax direct, 129, 130, 146, 188–90, 194 indirect, 129 taxation without representation, 11, 191 Taylor, Stuart, 37 Teaching Tours, 184 temperance, virtue of, 100, 101, 227 Terry v. Ohio, 24, 88, 200 textualism, 123, 163 The More You Know, 219 Third Amendment, 18 Thirteenth Amendment, 19 Thomas Aquinas, 26, 204 Thomas, Clarence, 83, 164 Three-fifths Compromise, 146, 147, 192, 196 Time magazine, 51, 112, 228 Tocqueville, Alexis de, 97 Toobin, Jeffrey, 173–5 Toutant, Charles, 199 Townshend Acts, 11 traffic laws, 199

treason high, 128 petty, 128 Treason Act of 1695 (England), 128 Treaty of Paris, 65, 130, 144 Treaty with the Bey of Tripoli, 65, 130, 131, 150 Trop v. Dulles, 65 Trotter, Griffin, 85 Trump, Donald, 84 truths, self-evident, 1, 2, 18, 26, 30, 156 Tushnet, Mark, 12, 13, 52 Twelfth Amendment, 66, 119, 150, 151, 197 12 Angry Men, 106 Twenty-fifth Amendment, 3 Twenty-fourth Amendment, 138 Twenty-seventh Amendment, 29, 109, 119, 122, 127, 133, 143, 166, 197 Twenty-sixth Amendment, 138 Twenty-third Amendment, 138 Two Concepts of Liberty (Berlin), 31

U United States Army, 19, 211, 212 United States Captiol Police, 87 United States Census Bureau, 139 United States Citizenship and Immigration Services, 215 United States Internal Revenue Service, 129 United States National Archives, 122, 151 United States Office of Personnel Management, 201 United States v. Cruikshank, 152 United States v. Eichman, 200 United States v Nixon, 201 Universal Declaration of Human Rights, 141, 192


INDEX

University of Baltimore Law School, 213 unreasonable search and seizure, freedom from, 9, 64, 67, 78, 88, 190 Urofsky, Melvin, 37 utilitarianism, 33, 34, 96, 97

V Vice President of the United States, 3, 85, 86, 150, 151, 155, 187, 188 Virginia Declaration of Rights, 135, 141 Virginia Plan, 23, 24, 195, 196 virtue, 5, 27, 95, 96, 100, 102, 107, 113, 227 virtue theory, 27, 96, 100, 102, 109 Volokh, Eugene, 81 voting, 3, 4, 11, 38, 83, 93, 94, 103, 138, 188, 218, 225 Voting Rights Act of 1965, 138

W Waite, Sharon, 122 Wallace, George, 112 Ward, Paula, 91 Warren, Earl, 135 Washington D.C. Voting Rights Amendment, 155 Washington, George, 37, 66, 69, 150, 166, 195, 197, 201, 215 Washington School of Law, 94

241

Waters, Jessica, 52, 94 Watson, Alan, 140 Watson, Gregory, 122 Westboro Baptist Church, 110 Westside Community Schools v. Mergens, 68 We the People Congress, 168 We the People Program, 12, 13 Whitman, James, 91 Williamson, Hugh, 121 Wills, Garry, 147 Wilson, Don W, 122 Wilson, James, 144, 196 Wilson-Gorman Tariff. See Revenue Act, the Winthrop, Jonathan, 201 Wisconsin v. Mitchell, 200 Wong Wing v. U. S., 93 Wright, Randy, 183, 184 writs of assistance, 9–12, 20, 27, 33, 38 Wynn, Mike, 80 Wythe, George, 94

Y Yick Wo v. Hopkins, 93 Young, Ernest, 165

Z Zadrydas v. Davis, 142 Zedner v. United States, 135 Zeisel, Hans, 109 Zicarelli v. Dietz, 152

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