What should citizens (as participants in a republican form of government) know about the Constitution?

• Author: Levinson, Sanford

INTRODUCTION: LAWYERS AS "GOOD CITIZENS"

It is probably fair to say that the participants in the splendid symposium on the Citizen Lawyer were thinking primarily of the role of lawyers as "good citizens," (1) including the duty of lawyers truly to take seriously their responsibilities to be concerned with the basic health of our political system. (2) I have no problem at all in sharing this set of concerns. For almost two decades I have chosen (3) to teach courses on "professional responsibility," and have addressed the tensions that can easily arise between "zealous" commitment to the interests of individual clients and one's devotion to the common good of the political order. (4) These tensions, incidentally, are almost certainly more likely to be present in ordinary civil lawyers' practices than they are in criminal lawyers' practices; civil law practitioners, after all, rarely if ever defend their "zealousness" within the context of protecting clients against deprivation of liberty by a potentially overweening state. (5)

But the potential tension between the ideological interests of a client and what one might believe serves the "public interest" is not the only problem facing anyone who would enter the practice of law. The ever-increasing demands placed on lawyers to work longer hours have led many to note the competition between such demands and those generated by their "private" (especially family) lives. (6) There are, after all, only twenty-four hours in a day, and there are always opportunity costs presented by taking a deposition, on the one hand, or attending a child's school event, on the other. Unfortunately, what such a comparison leaves out is an extremely important third value, which is precisely the duty of anyone who takes citizenship seriously to the fullest extent: to spend quality time fulfilling those duties. In any event, it is well worth honoring those attorneys who have led truly commendable lives as engaged citizens and public servants (even if they never spent a day holding formal public office), and trying to encourage younger attorneys to emulate them.

1. NONLAWYER CITIZENS AND THEIR KNOWLEDGE OF THE CONSTITUTION

   My own interpretation of "citizen lawyer," however, takes a somewhat different form. Rather than talk about lawyers as good citizens, I want to address instead what knowledge of the legal--and, more particularly, the constitutional--systems we should legitimately expect (and encourage) from our nonlawyer compatriots in the American political community. In part, this reflects a long-term interest of mine in, and in defense of, the capacity of nonlawyer citizens to express themselves cogently on constitutional issues. (7) To use the terminology that I develop in my book Constitutional Faith, I am very much attracted by a "protestant" view of the American constitutional order that rejects the declaration of authority by any given institution--including the Supreme Court--to possess the "last word" on what the Constitution means. (8) My conception of the "Republican Form of Government" that lies at the heart of the Constitution's self-conception (9) requires an active citizenry that is constantly engaged in internal debate over not only the meaning of the Constitution with regard to those clauses that are indeed ambiguous, but also with regard to the adequacy of those parts of the Constitution that are all too clear in their meaning. (10)

   Given my interest, it is a happy coincidence that former Justice Sandra Day O'Connor, who gave the keynote address at our "Citizen Lawyer" symposium and serves as Chancellor of the College of William and Mary, has recently expressed her deep concern about deficiencies in the knowledge that many Americans have about the political system set out by the Constitution. (11) She has been especially concerned about what she perceives as attacks on judicial independence, which she believes is an important part of our constitutional order, (12) and she cosponsored a conference in 2006 with Justice Stephen G. Breyer on the state of the American judiciary. (13) "The overwhelming consensus coming out of that conference," she reported, "was that public education is the only long-term solution to preserving ... a robust constitutional democracy." (14) "And," she said, "we have to start with the education of our nation's young people," about whom she expressed special concern. (15) Part of the problem may be general American culture, which might explain why, as she noted, "[t]wo-thirds of Americans know at least one of the judges on the Fox TV show 'American Idol,' but less than 1 in 10 can name the chief justice of the United States Supreme Court." (16) She might have easily also cited an August 2006 Zogby Poll that found that three times as many Americans could name two of the Seven Dwarfs as could name an equal number of Supreme Court justices (77 percent vs. 24 percent), (17) just as almost three quarters of those polled could name Moe, Larry, and Curly, (18) whereas only 42 percent could name the three main branches of the U.S. federal government. (19)

   The former Justice offers an especially interesting insight about an unexpected consequence of the No Child Left Behind Act, (20) a signature achievement of the Bush Administration (whose passage was, of course, supported by Senator Ted Kennedy as well): (21) "One unintended effect of [the Act], which is intended to help fund teaching of science and math to young people, is that it has effectively squeezed out civics education because there is no testing for that anymore and no funding for that." (22) She notes the remarkable fact that "at least half of the states no longer make the teaching of civics and government a requirement for high school graduation." (23) This effectly repudiates what historically was "the primary purpose of public schools in America," which was helping to "produce citizens who have the knowledge and the skills and the values to sustain our republic as a nation, our democratic form of government." (24)

   It is impossible not to share Justice O'Connor's basic concern. As she laconically puts it, "Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do." (25) But, in life as in law, "[g]eneral propositions do not decide concrete cases," (26) and it is important to consider various possibilities with regard to the kinds of constitutional knowledge that we might be especially eager for our citizens to possess.

   It might be useful in this context to look at what kinds of knowledge the United States expects of those seeking entrance into the American political community as naturalized citizens; they must, after all, take a test on what, at least according to United States Citizenship and Immigration Services (USCIS), an American with an ordinary knowledge of civics must know. (27) The ninety-six questions of the test that was in place until October 2008 are, to put it mildly, something of a grab bag. Eight sample test questions, for instance, inquired about the American flag, including its colors; another question, equally reflecting America's fetishistic relationship with Old Glory, asks who wrote the "Star Spangled Banner." (28) A decent number, however, involved knowledge of the Constitution, especially of its structural aspects. (29) Would-be citizens will thus be expected to know, among other things, that there are no term limits for United States senators; that the President serves for four years and may be reelected once; and that the correct answer to "Who elects the President of the United States?" is, of course, the electoral college (30) and not We the People, whose professed wishes may be wholly ignored in determining who gets to the White House. (31)

   There is one extremely embarrassing error, however: USCIS's posited "correct answer" to the question "What is the most important right granted to U.S. citizens?" on the test in place until 2008 was "[t]he right to vote," (32) even though it is a notorious truth of our political system that the United States Constitution does not directly "grant" a right to vote. (33) And the Supreme Court's notorious per curiam opinion in Bush v. Gore, (34) which Justice O'Connor joined without any apparent hesitation, stated, among other things, that "[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." (35) One might hope that it would violate the Republican Form of Government Clause (36) if a state decided to make all of its offices filled through nonelectoral processes--for example, through the self-perpetuating appointment process seen in the French Academy, (37) or the appointment of a Pope by the College of Cardinals (38)--but it should be clear that, generally speaking, whether public officials are chosen by popular election is a decision to be made by the states, subject, of course, to Equal Protection considerations (and the strictures of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments). (39) Should the state decide that no one can vote for a given office, it is not at all clear that the Constitution would prevent that. (40) I moved from a state (New Jersey) that emulates the national government in electing a single "chief executive," who appoints the rest of the Executive Branch (41) (and nominates judges for the Senate to confirm), (42) to a state (Texas) that elects almost every public official (with a major exception in the appointment of the secretary of state). (43) It would surely not violate the Constitution if Texas decided that New Jersey presented a more sensible model, at least in some respects, and turned a half dozen elected offices into appointive ones and eliminated the election of the...