Popular constitutionalism, civic education, and the stories we tell our children.

• Author: Donnelly, Tom

NOTE CONTENTS INTRODUCTION I. POPULAR CONSTITUTIONALISM, JUDICIAL SUPREMACY, AND CONTEMPORARY CONSTITUTIONAL CULTURE A. Reviving a Lost Tradition B. A Friendly Amendment: "Democratic Constitutionalism" C. The Rise of Judicial Supremacy II. POLITICAL SOCIALIZATION, CIVIC EDUCATION, AND PUBLIC SUPPORT FOR THE SUPREME COURT A. Civic Education: A Source of Support for a Mysteriously Popular Court? 1. A (Very) Brief History of American Civic Education 2. The Role of Civic Education in Political Socialization 3. The Persistence of Public Support for the Supreme Court 4. The Key Factors Altering Previous Beliefs B. The Enduring Role of Textbooks in American Public Education III. WHAT IS BEING TAUGHT TODAY? A. Civic Education Today (and Yesterday) B. Constitutional Themes, Canonical Cases, and U.S. History Textbooks C. The Court as Redeemed Institution D. The Court as Authoritative Constitutional Interpreter: Or, the Judicial Supremacy/Judicial Review Confusion IV. POPULAR CONSTITUTIONALISTS: HISTORY'S VILLAINS OR LEGITIMATE INTERPRETERS? A. Chase, Marbury, and Jefferson's Challenge to the Judiciary B. Jackson, Marshall, and the Rights of the Cherokee Nation C. Jackson and the Second Bank of the United States D. Roosevelt and "Court-Packing" E. Alternative Challenges to an Aggressive Court: Public Campaigning, Social Movements, and Judicial Nominations 1. The Lincoln-Douglas Debates 2. Norm Contestation and Social Mobilization 3. Reagan and Judicial Nominations 4. The Southern Response to Brown and Nixon's "Southern Strategy" CONCLUSION APPENDIX: METHODOLOGY INTRODUCTION

Constitutional law is, at least in part, about storytelling. Through the exercise of our collective constitutional imagination, vague words written centuries ago are given life. Broad rights are given specific applications. In the process, the American Constitution becomes our Constitution. (1) As Jack Balkin explains, this imaginative process focuses on constructing a "constitutional story--a constitutive narrative through which people imagine themselves as a people, with shared memories, goals, aspirations, values, duties, and ambitions." (2) A generation earlier, Robert Cover poetically wrote, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." (3)

At any given moment, different communities are likely to craft different "constitutional stories." Our constitutional tradition, with its concise text and malleable history, is susceptible to multiple interpretations. A segregationist Southerner may construct a narrative featuring states' rights, focusing on the Tenth Amendment and statements from Thomas Jefferson, (4) Andrew Jackson, (5) and John C. Calhoun. (6) A civil libertarian may create a narrative stressing the nation's enduring commitment to free expression, connecting the First Amendment and the election of 1800 to New York Times v. Sullivan (7) and Texas v. Johnson. (8) A race-conscious liberal may understand Brown v. Board of Education (9) as realizing the earlier promise of the Reconstruction Amendments and Justice John Marshall Harlan's dissent in Plessy v. Ferguson. (10) It is through these stories that we come to understand the promises guaranteed by our Constitution as commitments realized over time--commitments to the proper scope of religious freedom, property rights, free expression, and equal protection, among others. As Bruce Ackerman notes, "[T]he Constitution is more than an idea. It is an evolving historical practice, constituted by generations of Americans as they mobilized, argued, resolved their ongoing disputes over the nation's identity and destiny." (11) It is through these imaginative acts and ongoing disputes that we become citizens of a constitutional tradition that extends through the centuries. It is through constructing these narratives that we truly become "We the People."

Even so, our constitutional narratives are frequently contested. H. Jefferson Powell describes American constitutional law as "an historically extended tradition of argument." (12) Through these arguments, we often wage the same battles, decade after decade. Nevertheless, over time we sometimes reach a new consensus on key issues--sometimes at gunpoint (slavery), other times by resounding electoral mandate (the commerce power). Regardless, these debates are the subject of countless articles and books--and so they should be. They shape our constitutional culture (13) and the structure of our public discourse.

One important set of constitutional stories, however, has not been the subject of focused study. These stories subtly shape our constitutional culture but have received scant attention from legal scholars. They are often the product not of robust public debate, but of bureaucratic decisions shaped by market forces and narrow interests. I am speaking of the constitutional stories we tell our schoolchildren. These stories are often derived from school curricula and textbooks shaped by a clandestine process that few parents (not to mention legal scholars) take the time to understand. Although important studies have been conducted on the portrayal of race and gender in our school curricula, (14) little attention has been paid to the broader constitutional stories we tell our schoolchildren--stories that shape their early conception of the proper role of government in their lives and the relative balance of power between the constitutive branches.

In the case of the U.S. Supreme Court, in many ways the least publicly visible branch, these stories can be vitally important in shaping children's long-term views about the role of the Court in our constitutional system. Is the Court properly understood as the authoritative constitutional interpreter, or instead as merely a coequal voice in an ongoing debate? Do these stories flame judicial review as part of our dynamic system of checks and balances, or do they advocate outright acquiescence by Congress, the President, and the People in the face of an assertive Court? These questions are central to the current debate over judicial supremacy and popular constitutionalism--a debate focused on the proper scope of judicial interpretive authority and the overall state of contemporary constitutional culture.

In this Note, I explore one possible source of public support for an active Supreme Court--or, as popular constitutionalists call it, "judicial supremacy." I examine the underappreciated role that political socialization, particularly civic education, may play in shaping the People's beliefs about the proper role of the Court in the American constitutional system. In particular, I focus on the consensus narratives presented in our high school textbooks--narratives that communicate powerful (but implicit) messages about the proper role of the Court in American society.

In Part I, I discuss popular constitutionalism, the rise of judicial supremacy, and the current state of our constitutional culture--mostly as understood by prominent popular constitutionalists, especially Larry Kramer. I then contrast Kramer's popular constitutionalism with a competing account offered by Robert Post and Reva Siegel, which they call "democratic constitutionalism." To that end, I focus on various methods available to check an overly aggressive Court, contrasting blunt institutional checks (like jurisdiction-stripping and "court-packing") with longer-term checks (like social mobilization and judicial nominations). Part II outlines the mechanism that underlies public support for the Supreme Court, paying particular attention to the role of civic education.

Part III turns to the constitutional stories we tell our schoolchildren and what these stories communicate about the proper role of the Court in our constitutional system. My primary focus will be on the narratives that are presented in today's most widely used high school U.S. history textbooks, although I will also draw upon older textbooks to suggest trends over time.

Part IV focuses on the textbooks' portrayals of important public challenges to the Court's interpretive authority. I concentrate on their treatment of such blunt checks as President Jefferson's challenge to the judiciary in the early 1800s, President Jackson's repudiation of Chief Justice Marshall in Worcester v. Georgia, (15) President Jackson's veto of the Second Bank, and President Franklin D. Roosevelt's attempt to pack the Court in the late 1930s, as well as such subtler checks as Abraham Lincoln's attack on Dred Scott v. Sandford (16) during the Lincoln-Douglas debates, the southern response to Brown, Richard Nixon's "Southern Strategy," and President Ronald Reagan's judicial nominations. I will be sensitive throughout to the important distinction between the blunt institutional checks advocated by Kramer and the "persistent and nuanced" checks that are stressed by Post and Siegel.

Part IV concludes that contemporary high school textbooks offer little support for blunt institutional checks on the Court (and even less support than in the past), but offer some legitimacy to other public challenges to the Court. Indeed, all textbooks are open to non-Article V constitutional change through judicial nominations and accept key instances of norm contestation through public campaigns and social movements. This suggests that, although the textbooks are critical of blunter checks on the Court's interpretative authority, they subtly accept longer-term, alternative forms of constitutional contestation and change.

1. POPULAR CONSTITUTIONALISM, JUDICIAL SUPREMACY, AND CONTEMPORARY CONSTITUTIONAL CULTURE

   There is a growing consensus among legal academics on both the left and the right that the Supreme Court has taken on an outsized role as the authoritative constitutional interpreter in the modern American constitutional system. Kramer argues that "we have for all...