Indiana Law Review


Constitutional Illiteracy

Review Essay
OF

Louis Michael Seidman & Mark V. Tushnet,
Remnants OF Belief: Contemporary

Constitutional Issues

PaulE.McGreal*

Introduction

In my constitutional law class, we begin the semester, appropriately enough,
at the beginning of the Constitution: the Preamble. The opening words of the
Preamble are a fruitful area for discussion: "We the People."^ At first, these words
seem both majestic and all-inclusive. Next, however, discussion turns to the
question whether the words, historically understood, mean what they say. The
Constitution itself shows that slaves—^though the word slavery appears nowhere
in the document—are not part of this "We." Also, knowledge of history shows
that women were not part of this "We." Similarly, not all white men were meant
to be a part of "We." Rather, "We the People" really meant "We the Adult White
Male Property Owners."^

Does the disjunction between the apparent and actual meaning of "We the
People" really make a difference? Probably. The Constitution, ratified by "the
People" assembled in state conventions, created a representative democracy. Also,

Articles I (legislative branch) and n (executive branch) of the Constitution created
a democratic republic that assumed individual participation in government. Thus,

the Constitution reveals that both the consent and the participation of the governed

were important aspects of the new government. To the extent that groups subject
to the Constitution and its regime were not asked for their consent or participation,

we should be troubled by the narrow definition of "We the People."
Professors Louis Michael Seidman and Mark V. Tushnet make a similar

definitional move in their new book Remnants of Belief: Contemporary
Constitutional Issues.^ According to Professors Seidman and Tushnet, we are in
the midst of a constitutional crisis: ''Americans are preoccupied with

constitutional argument even though they know that very few people are actually

* Assistant Professor, South Texas College of Law; LL.M., Yale Law School; J.D., SMU
Law School. I would like to thank Linda Eads for her helpful comments on a prior draft of this

Essay and Dax Faubus for his invaluable research assistance.

1

.

U.S. Const, preamble.

2. See Richard B. Morris, The Forging ofthe Union: 1 78 1 - 1 789, at 1 73 ( 1 987) ("The

original Constitution we now recognize to have been basically a document of governance for free

white propertied adult males.").

3

.

Louis Michael Seidman&MarkV. Tushnet, Remnants ofBelief: Contemporary
Constitutional Issues (1996).



694 INDIANA LAW REVIEW [Vol. 30:693

persuaded by the arguments they make.""* Their claim begs a very important
question—who are these "Americans" preoccupied by constitutional argument.
As argued later, Seidman and Tushnet's "Americans" encompass a very narrow
group.^ The "Americans" they speak of are a group I call "constitutional
professionals," which include academic commentators, judges, and public figures

who engage in discussion of constitutional issues for a living.^
But, so what? Who cares if another book by legal academics talks about and

to their own kind? We should care because Seidman and Tushnet define the
"Americans" who are "preoccupied" by constitutional issues in a narrow and elitist
manner. By defining "Americans" too narrowly, Seidman and Tushnet miss a
problem with the constitutional arguments among "Americans." The problem is
that the Constitution is missing from these public constitutional arguments. Many
people feel free to speak about what the Constitution requires without making any
effort to link their arguments to the Constitution itself. This complaint is not an

appeal for a strict textual reading of the Constitution.^ Rather, it is a plea for these

arguments to have the Constitution's text as a common starting point; if people do
not know the language of the Constitution, it is difficult to formulate a successful
argument.^

This Essay has two missions. First, to plead for a more universal view of who
matters when we speak about the relevant community for constitutional argument.
Second, to suggest some lessons we might learn from taking a more universal view
of this community. These points are developed in five parts. Part I discusses

Seidman and Tushnet' s thesis that a constitutional crisis is on the horizon. Part
n analyzes Seidman and Tushnet' s definition of "Americans" whom they say are
heading toward a constitutional crisis. This discussion suggests that some
academic writing makes generalizations about society based on observations about

a narrow slice—and, as it turns out, a rather eUtist slice—of the population. Part
in identifies the constitutional crisis that afflicts America generally, constitutional

illiteracy, and Part IV asks why we should care about this problem. Part V
concludes with a suggested cure for the constitutional illiteracy that ails

4. Id. at V. (emphasis added).

5. See infra notes 37-43 and accompanying text.

6. Professor Michael Kammen has made a similar classification in his study of the

Constitution in American popular culture. See Michael Kammen, A Machine that Would Go
OF Itself at xi (1986). Professor Kammen analyzed how the Constitution was viewed by "ordinary

Americans." Id. "'Ordinary' does not refer to their social status or degree of education, but rather

to the fact that they are nonprofessionals: not lawyers, nor judges, nor professors of constitutional

law." Id.

7. Constitutional arguments may take many forms including: text, history, structure,

precedent, political theory, and all the other arguments that flow from these sources. See generally

Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982) (describing six

basic methods of constitutional argument: historical argument, textual argument, doctrinal

argument, prudential argument, structural argument, and ethical argument).

8. Later, this Essay discusses examples of constitutional arguments that suffer from a

failure to consider the Constitution's text. See infra notes 68-78 and accompanying text.



1997] CONSTITUTIONAL ILLITERACY 695

America—the America we all inhabit.

I. The Coming Constitutional Crisis

According to Professors Seidman and Tushnet, American debate over
constitutional issues is in crisis. In part, the crisis is that no one has irrefutable

answers to constitutional issues. There is always another side to the argument.

For example, if one judge or commentator argues that state action is present under

certain circumstances, another can make an equally plausible argument to the
contrary. We cannot agree.

The inabiUty to answer constitutional questions is only the beginning of our
constitutional crisis. Judges and commentators compound the problem by acting
as if they know the answers, even though—as Seidman and Tushnet show
throughout their book—^these judges and commentators cannot prove that they are
right.^ Under this view, current constitutional discourse is merely an act of self-
deception and, thus, is doomed.

^^

The main culprit in dooming constitutional discourse is the disemboweling
effect of legal realism and the partial endorsement of that theory by the architects

of the New Deal. Several realizations arise from this aspect of the New Deal.
First, action versus inaction is a false distinction. Government inaction is really

a choice to perpetuate the status quo. Seidman and Tushnet use the case of Miller

V. Schoene^^ as a running example of this concept.'^ In Miller, Virginia faced an

unfortunate choice. At that time, the state had a large apple industry threatened

by a form of tree disease known as cedar rust. The disease grew on cedar trees and
then spread to apple trees. The disease was harmless to the cedar trees, but
destroyed apple trees. To eradicate the cedar rust and protect the apple trees,
Virginia decided to destroy the cedar trees.

The owners of the cedar trees sued Virginia for compensation; they claimed
that the state had "taken" their cedar trees within the meaning of the Takings

Clause.'^ The Court dismissed this challenge in a passage highlighted and relied
on extensively by Seidman and Tushnet: "[T]he state was under the necessity of
making a choice between the preservation of one class of property and that of the

other. ... It would have been none the less a choice if, instead of enacting the

present statute, the state, by doing nothing, had permitted serious injury to the

apple orchards ... to go on unchecked."*"^ If Virginia had chosen to do nothing,

it would have decided to destroy the apple orchards. Either way, the state acted

9. Seidman & Tushnet, supra note 3, at 5. ("Our aim is to explain why so many
constitutional questions are hard and why so many commentators pretend that they are easy.").

10. See id. at 193-94.

11. 276 U.S. 272(1928).

1 2. Seidman & Tushnet, supra note 3 , at 26-27.
13. U.S. Const, amend. V ("nor shall private property be taken for public use, without just

compensation").

14. Miller, 276 U.S. at 279 (emphasis added). See also SEIDMAN & TuSHNET, supra note
3, at 26-27 (discussing Miller).



696 INDIANA LAW REVIEW [Vol. 30:693

to favor one property interest over another. Inaction is a choice, and that choice
is action. Seidman and Tushnet emphasize this point by repeatedly citing Miller
or quoting the phrase "none the less a choice."*^

By discrediting the action versus inaction distinction, legal realism shows that
all of society is somehow constructed by government action. Nothing in society
can be the result of a neutral baseline unaffected by political preferences. Rather,
"everything in social life results from a choice by government. . . ."^^ This insight

has important consequences for how we view social institutions. For example, the
notion of a "free" marketplace where individuals act autonomously in "private"

transactions is based on an erroneous assumption. The marketplace has a set of
initial property rights as a starting point for so-called "private transactions," and

the initial allocation of property rights is a political act of government.
^^

The realist insight about the marketplace shows why the demise of the
economic due process doctrine associated with Lochner v. New Yorh}^ was
inevitable. In Lochner, the Supreme Court held that a New York law limiting the
number of hours that bakers could work violated the Fourteenth Amendment's due
process protection of "Hberty."^^ According to the Court, the then-existing

common law rules of contract—under which the law left the employer and the
bakers free to set work hours—was a natural condition of liberty, free from
government action.^^ Any act by the state legislature to change that common law
was deemed an infringement of the parties' liberty rights.^^ Miller, however,
teaches that a legislative decision not to change the common law is "none the less
a choice." Consequently, a state's choice to "do nothing" was a decision to

"permit" the consequences of the common law rules.^^ Because a state's courts
stood ready to enforce those rules, the state's choice not to change the rules was

an endorsement of them.

As Seidman and Tushnet amply demonstrate in their book, the implications
of Miller's "none the less a choice" argument go far beyond economic due

process. Most obviously, the argument has a devastating effect on the concept of

15. Seidman & TuSHiSfET, supra note 3, at 27, 30, 68 (examples of where that phrase can
be found).

16. Mat 27.
17. Further, legal realism has taught us that there is no objective way to set these initial

starting points. Eric Blumenson, Mapping the Limits ofSkepticism in Law and Morals, 74 TEX.

L. Rev. 523, 529 (1996); Felix S. Cohen, Transcendental Nonsense and the Functional Approach,

35 COLUM. L, Rev. 809, 820-21 (1935); Mark V. Tushnet, An Essay on Rights, 62 Tex. L. Rev.

1363, 1402 (1984).

18. 198 U.S. 45 (1905).

19. Id. at 53, 64; see U.S. CONST, amend. XIV, § 1 ("No State shall . . . deprive any person

of life, liberty, or property, without due process of law.").

20. See Lochner, 198 U.S. at 64.

21. See id.

22. See Miller v. Schoene, 276 U.S. 272, 280 (1928). See SEIDMAN & Tushnet, supra note
3, at 30.



1997] CONSTITUTIONAL ILLITERACY 697

state action in constitutional law.^^ If state action is everywhere, a state action

requirement is meaningless.^'* For example, the Equal Protection Clause prohibits

only state discrimination, not private discrimination. A decision by the legislature
not to prohibit private discrimination is a government "choice" to permit private

discrimination and, thus, is government discrimination.^^ Indeed, under this view,

the states could be under a duty to enact anti-discrimination laws, lest their

inaction be judged state action permitting private discrimination.^^

But, Miller's "none the less a choice" argument—that all action is government

action— cannot be true. "[S]ome conception of individual action not attributable

to the state is necessary to the existence of rights."^'' If Miller is right, individuals

become wholly vulnerable to the government because "[w]ithout a private sphere
in which individual decisions are not attributable to the government, the very

concept of individual right loses its meaning."^^ The problem is trying to
determine how far short of Miller we should stop and how to define a sphere of
individual action not attributable to the state and therefore protected from state

intervention. Seidman and Tushnet argue that there is no principled way to draw
this line and, thus, no one can claim to have drawn it correctly.^^

The bulk of Remnants of Belief SLpplics Miller's "none the less a choice"
insight to constitutional issues such as unconstitutional conditions, racial equality,

pornography,^^ campaign financing, and the death penalty. In each case, they

persuasively demonstrate how this insight prevents convincing resolution of the
issue.

Herein lies the constitutional crisis: although no one can legitimately claim

to have the "right" answers to constitutional questions, many commentators act as

ifthey have the answers. Also, according to Seidman and Tushnet, each author's

resolution of constitutional questions jm^/ happens to coincide with that author's

23. See SEIDMAN & TUSHNET, supra note 3, at 63-68.
24. See id. at 68.

25. See id. at 30.

26. 5^^/^. at 111.

27. Id. at 63.

28. Id. at 51. If all private action is government action, such action cannot be private and

as a result, individual action would not be protected against government intervention. See Ronald

J. Krotosynski, Jr., Back to the Briarpatch: An Argument in Favor ofConstitutional Meta-Analysis

in State Action Determinations, 94 MiCH. L. REV. 302, 323 n.l09 (1995).

29. See SEIDMAN & TUSHNET, supra note 3 , at 70-7 1

.

30. The "none the less a choice" argument is particularly effective in the free speech area.

Obviously, if government passes a law that limits certain speech it has restricted speech under the

First Amendment guarantee of free speech. Yet, under Miller, the opposite choice may have the

same effect. Certain speech, it is argued, has the effect of silencing or devaluing the speech of

others. This is one of the arguments against pornography—it silences or devalues speech by
women. By refusing to regulate such "silencing" speech, the government has made a choice to

permit such speech, and this government choice or government action devalues or silences speech

by women. Thus, it is false to say that government regulation of pornography would restrict speech

and failure to regulate would not restrict speech. Id.



698 INDIANA LAW REVIEW [Vol. 30:693

political preferences.^^ Seidman and Tushnet suggest that this correlation between
scholarly conclusion and political disposition is no accident.^^ Rather, because the
post-New Deal "none the less a choice" insight makes constitutional argument
inherently malleable, authors can manipulate constitutional arguments to further

their political agendas. Yet, authors still write as if they are correct and their

opponents are wrong. "There has been a persistent tendency to treat constitutional

questions as if they were easy and the answers as if they were obvious. It naturally

follows from this belief that one's opponents are fooUsh, or evil, or dangerous

extremists bent on fundamentally transforming bedrock constitutional

principles."^^ The result is "the politics of polarization—the demonization of
opponents and the oversimplification of complex problems that are hallmarks of

constitutional argument."^"^

Seidman and Tushnet offer a solution to that constitutional crisis: self-
awareness and tolerance. We should become aware of the weaknesses in our
arguments, and with this awareness, be tolerant of the arguments made by others.^^
Only then can we move away from the "politics of polarization," and move toward
a dialogue in which we can "at last . . . talk directly to each other without the
necessity of filtering our disagreements through overblown constitutional

rhetoric."^^

n. Who Are "We"?

In diagnosing our constitutional crisis, Seidman and Tushnet claim to identify

an ailment that afflicts constitutional debate among "Americans" generally.^^ In
setting to their task, they state, "Some representative examples of the sort of
constitutional argument we are talking about—drawn from the popular press,
public discussions, and the law reviews—will help frame our argument."^^ After
reading the book, however, one realizes that Seidman and Tushnet are discussing

a problem in a rather narrow slice of America. As noted above, "Americans"
means "constitutional professionals," those who think and write about the
Constitution for a living. Indeed, a perusal of the "Bibliographic Essay" included

at the end of the book shows that their "representative examples" are drawn from

31. See id. dXlO-ll. For example, Seidman and Tushnet point specifically to Professor

Michael McConnell's treatment of selective abortion funding and funding of religious activities.

Id. at 16-18. See Michael W. McConnell, The Selective Funding Problem: Abortions and

Religious Schools, 104 Harv. L. Rev. 989 (1991). They note that McConnell's conclusion on the

constitutionality of each practice coincides with his substantive commitments on each issue. See

Seidman & Tushnet, supra note 3, at 16-18.
32. See SEIDMAN & TuSHNET, supra note 3, at 21

.

33. /rf. at4.

34. Id. at 193.

35. /t/. at 198, 200.

36. Id. at 193.

37. Id. at V.

38. Id. at 5.



1997] CONSTITUTIONAL ILLITERACY 699

legal academics,^^ academics from other disciplines/^ professional public

commentators,"^^ and judges
'^^—all constitutional professionals. Also, almost all

of the sources cited appear in law reviews, law books, and case reports. Only two

citations to publications of general circulation are included—two
newspapers—and only for factual background, not as examples of constitutional
argument."^^

Seidman and Tushnet, then, base their critique of American constitutional
debate on a narrow definition of America—constitutional professionals. These
individuals are likely an elite group."^ Consequently, Seidman and Tushnet'

s

critique and proposed solution apply to a problem with constitutional debate in a

narrow slice of "America," not Americans generally. Like "We the People,"
Seidman and Tushnet' s "America" is narrowly defined.

A book that Seidman and Tushnet cite favorably commits the same sin of

39. Just a smattering of the academic works cited are: BRUCE ACKERMAN, We THE PEOPLE:
Foundations (1991); Robert H. Bork, The Tempting of America: The Political Seduction

OF THE Law (1990); Cass R. Sunstein, The Partial Constitution (1993); Laurence H. Tribe,
American Constitutional Law (2d ed. 1988); John Hart Ely, The Wages of Crying Wolf: A
Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Michael W. McConnell, The Selective

Funding Problem: Abortion and Religious Schools, 104 Harv. L. Rev. 989 (1991); David A.

Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 Yale
L.J. 1491 (1992). The Bibliographic Essay continues in this vein, with citations predominantly to

law review articles and books by constitutional professionals. Seidman & Tushnet, supra note
3, at 203-16.

40. Nat Hentoff, Is Congress Going to Bring Back George III, WASH. POST, Nov. 9, 1 99 1

,

at A27. See SEIDMAN & TuSHNET, supra note 3 , at 203- 1 6.
41. George Will, The Flag Dispute: Individualism Redux, Newsday, July 3, 1989, at 43;

George Will, The Flag Isn't the Only Thing Burned Up, NEWSDAY, June 26, 1989, at 51; George

Will, Affirmative Action Gets a Good Knock, Newsday, Jan. 30, 1989, at 50; George Will, How
Can a Judge Impose Birth Control?, Newsday, June 26, 1988, at 10 [hereinafter Will, How Can
a Judge Impose Birth Control?].

42. See, e.g., DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989);

Nollan V. California Coastal Comm'n, 483 U.S. 825 (1987); San Antonio Indep. Sch. Dist. v.

Rodriguez, 41 1 U.S. 1 (1973); Miller v. Schoene, 276 U.S. 272 (1928). See SEIDMAN & TuSHNET,
supra note 3, at 203-16.

43. See Ruth Marcus, Court Runners-up Drew President's Warmest Praise; Clinton Settled

on Breyeras Less Risky Choice, WASH. POST, May 15, 1994, at A6 (cited for factual background

of President Clinton's nomination of Stephen Breyer to the Supreme Court); Kathy Fair, 'Every

Woman and Child' Faces Rape, Judge Says; McSpadden Says Castration Should Be Sex Case
Option, HOUSTON Chron., Oct. 13, 1992, at 17A. Of course, Seidman and Tushnet also cite to the

newspapers that carry Nat Hentoff and George Will's columns. See supra notes 40-41

.

44. Cf Romer v. Evans, 1 16 S. Ct. 1620, 1637 (1996) (Scalia, J., dissenting) ("When the

Court takes sides in the culture wars, it tends to be with the knights rather than the villeins — and
more specifically with the Templars, reflecting the views and values of the lawyer class from which

the Court's Members are drawn."); Cass R. Sunstein, LegalReasoning and PoliticalConfuct

177 (1996).



700 INDIANA LAW REVIEW [Vol. 30:693

defining America in elitist terms. Dean Anthony Kronman's The Lost Lawyer:
Failing Ideals ofthe Legal Profession^^ argues that the American legal profession
currently suffers from a malaise—a loss of purpose.''^ In an earlier time, lawyers
were motivated by an ideal of the lawyer as statesman."*^ This ideal of the lawyer-
statesman derived from "the belief that the outstanding lawyer—the one who
serves as a model for the rest—is not simply an accomplished technician but a
person of prudence or practical wisdom as well."'*^ Today, however, the bottom
line has displaced this ideal as the profession's prime motivating force."*^

In making his diagnosis, Kronman focuses on the influence of American law
schools, law firms, and courts on the legal profession. Kronman, however, takes
a narrow view of what counts as American law schools and law firms. By law
schools, he means the elite, national law schools that center their curricula around
the law-and-subject of the moment.^^ Legal scholarship is the product of the

professors at these same schools.^* Wholly ignored are the legions of "other" law
schools that have not done so. Also, he ignores the scholarship in non-eUte law
reviews, where doctrinal analysis is often sophisticated and prevalent.

Kronman suffers from the same myopia when he critiques the American legal
profession. On this score, however, Kronman acknowledges his narrow focus and
offers a justification:

Today, as in the past, only a small percentage of lawyers practice in

large corporate firms (those, let us say, with one hundred or more
attorneys and a predominantly business clientele). Indeed, data collected

in 1980 indicate that roughly three-quarters of all the lawyers in private

practice "either practice alone or in firms having ten members or less."
But the large corporate firm continues to exercise an influence, both

within the profession and outside it, that far exceeds its numerical

strength. However influence and power are measured—whether in raw
economic terms or in subtler political ones—these firms remain the
leaders of the bar. In that respect, their position is little different from

what it was a generation ago, or even earlier.^^

This is Kronman' s only attempt to make his observations about large firms

45

.

Anthony T. Kronman, The Lost Lawyer: Failing Ideals ofthe Legal Profession

(1993).

46. Id. at 3.

47. See id. at 2-3.

48. Id. at 2.

49. See id. at 4 ("[T]he explosive growth of the country's leading law firms . . . has changed

forever the practice of the lawyers in them and created a new, more openly commercial culture in

which the lawyer-statesman ideal has only a marginal place. . . .").

50. Id. at 6 (addressing the "scholarly culture ... in the country's leading law schools").

Kronman focuses primarily on the effects of the law and economics and critical legal studies

movements. See id. at 166-68, 225-64.

51. See id. zi 266-10.

52. Id. at 273-74 (footnotes omitted).



1997] CONSTITUTIONAL ILLITERACY 701

relevant to the entire practicing bar.^^ The passage makes clear that his book is
written about and for a narrow slice of the American legal profession. ^'^ Like "We
the People" and Seidman and Tushnet's "Americans," the "Lawyer" in Kronman's

"The Lost Lawyer" is not as inclusive as it first sounds. "The Lost Lawyer" is
really "The Lost Lawyer Who Graduated from an Elite Law School and Practices
in a Large Firm in a Large City."

So why should we care that authors like Seidman, Tushnet, and Kronman
write about and to a narrow audience? Simply put, their narrow focus ignores

problems in America at large. How one defines the set of relevant people
determines whose problem one ultimately diagnoses. Our next task, then, is to
diagnose the crisis in constitutional debate among Americans generally.

m. Constitutional ArguuehtI

A. Open Up and Say "Ahhh . . ."; Diagnosing Our Constitutional Ailment

Seidman and Tushnet are correct to worry about what passes as constitutional

argument in today's popular culture. When the Supreme Court upheld the
Pennsylvania abortion statute at issue in Webster v. Reproductive Health

Services,^^ the local television news in my city reported that the Supreme Court
had held that abortion was illegal. This must have frightened or falsely

encouraged many people who took the reporter's word on the issue.
Unfortunately, our constitutional literacy is so poor that even the media can

misunderstand that the Constitution does not restrict abortions, but rather

addresses the government's ability to do so. In other words, the Constitution

largely addresses state action,^^ rarely imposing requirements directly on private

53. Others have attempted to address the malaise that affects particular areas of practice.

Professor Charles Ogletree has offered one such effort for lawyers in public defender offices. See

Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders,

106 Harv. L Rev. 1239 (1993).
54. In speaking with Texas lawyers who practice in smaller communities, the current

President of the Texas Bar has learned that these practitioners have different needs and views than

their large firm counterparts. See Colleen McHugh, A Commitment to Texas Lawyers, 59 TEX. B.J.

512, 512 (1996) (Lawyers in small towns "talked about life in a small town, imploring us to

remember the 'country lawyers' and the particular needs of small-firm practitioners.").

55. 492 U.S. 490 (1989).

56. This is not to say that the state action requirement is easy to understand or apply. See

Laurence H. Tribe, American Constitutional Law § 18-1, at 1688-91 (2ded. 1988); Charles
L. Black, The Supreme Court, 1966 Term—Foreword: "State Action, " Equal Protection, and
California's Proposition 14, 81 Harv. L. Rev. 69, 95 (1967) (describing the Court's state action

cases as "a conceptual disaster area"). Indeed, at times an otherwise private enterprise may be

treated as a government actor if the private and government conduct are sufficiently intertwined.

See Burton v. Wilmington Parking Auth., 365 U.S. 715, 726 (1961) (holding that private coffee

shop in public parking garage was a state actor restricted by the Constitution). Yet, the core

intuition—which can get lost in public constitutional argument—is that government action is the



702 INDIANA LAW REVIEW [Vol. 30:693

individuals.^'' Ignorance of the state action requirement is ignorance of what the
Constitution does—what it is fundamentally about.

The problem of constitutional illiteracy goes well beyond the state action
doctrine. Seidman and Tushnet correctly note that many people appeal to the
Constitution on a hotly-debated issue to signal the importance of the issue or the
strength of their views. Such actions parallel de Toqueville's observation that
most political issues in America inevitably become judicial issues.^^ Similarly,
today most every important poUtical issue in America, sooner or later, is made into
a constitutional issue.

If political issues are converted into legal issues (as de Toqueville suggests)

or constitutional issues (as Seidman and Tushnet suggest), Americans will need
to know something about legal argument or constitutional argument to continue
the debate. Indeed, de Toqueville observed that Americans of his time were

prepared to follow political issues into the courts:

There is hardly a political question in the United States which does

not sooner or later turn into a judicial one. Consequently the language of

everyday party-political controversy has to be borrowed from legal

phraseology and conceptions. As most public men are or have been
lawyers, they apply their legal habits and turn of mind to the conduct of
affairs. Juries make all classes familiar with this. So legal language is
pretty well adopted into common speech; the spirit ofthe law, bom within
schools and courts, spreads little by little beyond them; it infiltrates
through society right down to the lowest ranks, till finally the whole
people have contracted some of the ways and tastes ofa magistrate.

^^

According to de Toqueville, as political discussion became entwined with the law,

law-talk was assimilated into popular political discourse. If this assimilation did

not happen, the public at large would be left out of political discourse.

Unfortunately, modem Americans have not assimilated the Constitution into
their political arguments as readily as de Toqueville' s Americans assimilated legal

language into their political arguments. To do so, modem Americans would need
a working knowledge of how the game of constitutional interpretation is played.^^

focus of the Constitution.

57. Indeed, the only provision of the Constitution that may apply directly to individual

action is the Thirteenth Amendment's prohibition of slavery. U.S. CONST, amend. XIII; see Jones

V. Alfred H. Mayer Co., 392 U.S. 409 (1968) (Congress' power to legislate under the Thirteenth

Amendment extends to regulation of private conduct.). Conversely, the Court has held that

Congress' power under the Fourteenth Amendment extends only to regulation of state action. See

The Civil Rights Cases, 109 U.S. 3 (1883). Of course, this is not to suggest that the Hne between

"state" and "private" action is an easy one to draw. See supra note 56.

58. de Toqueville wrote: 'There is hardly a poHtical question in the United States that does

not sooner or later turn into a judicial one." ALEXIS DE Toqueville, Democracy in America 248

(J.P. Mayer & Max Lerner eds., George Lawrence trans., 1966) (1835).
59. Id. (emphasis added).

60. See Seidman & Tushnet, supra note 3, at 3-4.



1997] CONSTITUTIONAL ILLITERACY 703

Yet, when we redirect our focus to the American public generally, we see that
popular constitutional arguments often are not constitutional. Instead, the

Constitution is played as a trump card that is meant to end discussion. The
speaker makes little, if any, effort to explain why her argument derives from the
Constitution. In sum, what is missing most from American constitutional

argument is the Constitution itself.

B. Looking at American Constitutional Argument

In looking at constitutional argument among Americans generally, we start
with how Americans use—or misuse—the text of the Constitution. Because all
constitutional arguments flow from the text,^^ either directly or indirectly, the text

must form a conmion ground, otherwise we cannot recognize what the speaker is
saying as constitutional argument; we may as well be speaking different
languages.

^^

An example discussed by Seidman and Tushnet, drawn from the work of
popular political commentator George Will, illustrates the failure to appeal to text.

In one article. Will criticized the decision of an Arizona trial court judge to

condition the probation of a mother convicted of child abuse on the mother's

continuing use of birth control. Will opined: "When government tampers,
surgically or chemically, with sexuality, it is touching personal identity. In light

of the recent elaboration of a woman's privacy rights, as defined in constitutional

law concerning abortion, it is hard to imagine [the judge's] sentence withstanding

the scrutiny in an appeals court."^^ Will makes a common form of argument in
public debate. The argument goes like this: "If the Constitution protects right X,
then it certainly must protect right Y." The author hopes that the reader will have

the same visceral reaction to the situation that the author did. Seidman and
Tushnet criticize Will for offering an unpersuasive constitutional argument. They

61

.

One such argument is history or original intent. The ignorance of constitutional text is

compounded by a popular ignorance of basic American history. See Lewis H. Lapham, The

Importance of Studying U.S. History, HARPER'S MAG., Jan. 1, 1996, at 7. ("Assume that the

existence of the American democracy requires the existence of an electorate that knows something

about American history, and [a recent] . . . press release from the U.S. Department of Education can

be read as a coroner's report."). Another such argument relies on the structures of government

created by different parts of the text. See generally CHARLES L. BLACK, JR., STRUCTURE AND

Relationships in Constitutional Law (1983).
62. Recently, Professor Laurence Tribe has argued that constitutional argument must obey

certain rules to be recognized as such. See Laurence H. Tribe, Taking Text and Structure Seriously:

Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995)

(Professor Tribe criticizes the arguments in recent articles by professors Akhil Amar and Bruce

Ackerman as outside the bounds of proper constitutional argument.); see Bruce Ackerman & David
Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995); Akhil Reed Amar, The Consent

ofthe Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994).

63. Will, How Can a Judge Impose Birth Control?, supra note 41, at 10. See SEIDMAN &
Tushnet, supra note 3, at 7.



704 INDIANA LAW REVIEW [Vol. 30:693

note several counterarguments that Will did not address, as well as some of the
faulty assumptions that underlie his argument.

The problem with Will's argument is that it is does not count as constitutional
argument.^"* Will's lesser-must-be-included-in-the-greater argument—that
protection of a broad right (right X) clearly requires, as a matter of inexorable
logic, the protection of a second, supposedly lesser included right (right

Y)—relieves the author of the burden of articulating the precise basis for
protecting the lesser included right. At the most basic level. Will does not identify
the constitutional text he reUes on. The reference to the abortion cases suggests
that the Due Process Clause may be doing the work.^^ But, why does the Due
Process Clause protect abortion? Why is abortion analogous to imposition of birth
control as a condition of probation? How has due process changed since Roe v.
Wade^^ articulated its vision of the right to privacy? Why not include Griswold
V. Connecticut' s^^ contraception decision? Will is one of the more thoughtful lay
commentators on constitutional issues, and yet, he leaves all of these questions

unanswered. This example does not bode well for popular constitutional

argument.

Another error seen in popular constitutional argument is misquoting the

Constitution's text. The popular discussion of gun control laws is replete with
examples of this type of misargument. Opponents of gun control argue that gun

control laws are unconstitutional because the Second Amendment protects a
largely unfettered right of individuals to purchase and possess firearms. This right

64. Will's discussion of the term limits issue in his book contains the same flaw. George

Well, Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy

(1992). At one point, Will discusses the States' constitutional authority to place term limits on

federal representatives. Will's only reference to the Constitution is to the Times, Places and

Manner Clause in Article I, Section 4. Id. at 223. Will's discussion fails to explain why a term

limit is a time, place or manner restriction (a viewpoint the Supreme Court rejected in U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779 (1995)), and wholly ignores the Qualifications Clauses in

Article I, Sections 2 and 3. Also, although Will refers to Supreme Court cases dealing with a

tangential issue, he wholly ignores the most relevant case, Powell v. McCormack, 395 U.S. 486,

548 (1969), in which the Court held that Congress cannot add to the Constitution's list of

qualifications for federal representatives. Will, supra, at 223-24.

65. In Roe v. Wade, 410 U.S. 1 13, 153 (1973), Justice Blackmun was deliberately vague

about what constitutional text supported a woman's right to terminate a pregnancy:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of

personal hberty . . ., as we feel it is, or, as the District Court determined, in the Ninth

Amendment's reservation of rights to the people, is broad enough to encompass a

woman's decision whether or not to terminate her pregnancy.

Subsequent cases have made clear that the Court sees the right as an aspect of due process "liberty."

See Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) ("Constitutional protection of the

woman's decision to terminate her pregnancy derives from the Due Process Clause of the

Fourteenth Amendment.").

66. 410 U.S. 113(1973).

67. 381 U.S. 479 (1965).



1997] CONSTITUTIONAL ILLITERACY 705

arguably derives from the Second Amendment's command that "the right of the
people to keep and bear Arms, shall not be infringed."^^ For example, during his

unsuccessful bid for the 1996 Republican presidential nomination, Pat Buchanan

said, "That Second Amendment right to keep and bear arms is a right that . . .
comes before the Constitution."^^ Similar statements appear in letters-to-the-editor

in newspapers around the country:

• "The Second Amendment to the U.S. Constitution . . . protects the right to
bear arms. . . ."^^

• "Our founding fathers meant for Congress, the President and all governmental
authorities never to infringe on the rights of the people to keep and bear

arms."^^

• "[T]he Second Amendment right to keep and bear arms . . . ."^^

• "The people's right to keep and bear arms shall not be infringed period."^^
• "[M]y Second Amendment right to bear arms . . . ."^"^

On their face, the above quotes appear persuasive — the Constitution's
command seems clear. Indeed, Buchanan and others should be applauded for
appealing to the Constitution's text. Each speaker, however, omits an entire

qualifying clause that the Framers tacked onto the beginning of the Second

Amendment: "A well regulated Militia, being necessary to the security ofafree
state, the right of the People to keep and bear Arms, shall not be infringed."^^

Whether this additional text is fatal to the above claims is beside the point of this

Essay.^^ Rather, the important point is that advocates of a prominent constitutional

issue do not feel the need to read or cite the full text of a constitutional provision.

Some writers probably paraphrased the text based on what they heard others say.
Indeed, a number of the above quotes refer to a "right to bear arms"—a misquote
itself. So much for constitutional text.

Of course, proponents of gun control commit similar errors. Consider the

68. U.S. Const, amend. II.

69. Michael Rezendes, In Arizona, Buchanan Lashes Gun Control, BOSTON GLOBE, Feb.

26, 1996, at 7 (emphasis added).

70. David Callender, Gun Rights Wording Worries Prosser, Wis. St. J., Feb. 17, 1996, at

4A (reporting on a proposed amendment to the Wisconsin state constitution that would protect "the

right to keep and bear arms for any lawful purpose including for security or defense, for hunting

and for recreational use.").

7 1

.

Jeanne Sexton, Letters From the People, ANCHORAGE DAILY NEWS, June 1 1 , 1995, at

M3.

72. G.C. Hammond, Metropolitan Voices: News Media on the Mark on Gun-Permit

Application, WASH. TIMES, Jan. 25, 1996, at C2.

73. Jim Dore, Letters From the People, ANCHORAGE DAE.Y NEWS, Jan. 26, 1996, at BIO.

74. David J. Giurintano, Readers' Views, BATON ROUGE Advoc, Jan. 24, 1996, at 6B.

75. U.S. Const, amend. II (emphasis added).

76. This question is subtle and complex and has been addressed by several thoughtful

commentators. See, e.g., Akhil Reed Amar, The Bill ofRights as a Constitution, 100 YALE L.J.

1131, 1 162-73 (1991); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637

(1989).



706 INDIANA LAW REVIEW [Vol. 30:693

following letter-to-the~editor in the St. Petersburg Times:

I don't believe how people who claim to believe in God can look the
other way when so many of God's innocent children are being killed by
people who hide behind afew sentences in our Constitution, which was
written more than 200 years ago. In those days, our people needed guns
because our country was a mixture of frontier towns and vast wilderness.

Today, the proliferation of guns has turned our cities into jungles and our

suburbs into killing fields.
^^

What text is the writer referring to? The writer makes no effort to locate his
argument within the Constitution. Given that the issue is gun control, the text is

likely the Second Amendment. But, even a glance at the text of the Constitution
would show that the Second Amendment is one sentence, not a "few." So much
for famiharity with the text.

''^

Other examples from popular commentary show that knowledge of text does
not necessarily ensure logical argument based on that text. Consider the following

writer's argument:

I am neither a constitutional scholar nor a lawyer. But I am a concerned
citizen who feels that the main clause of the Second Amendment—*'the
right of the people to keep and bear arms, shall not be infringed"—stands
independent of its subordinate clause and says exactly what the founders

our [sic] great nation wanted it to say.^^

Again, one must ask "why"? Other than the author's undefined "feeling," he

offers no constitutional principle which supports severing one clause from

another? The author offers no explanation of any history supporting such a
reading.

Poor constitutional argument is not limited to Second Amendment
commentators. A writer questioning the constitutionality of President Clinton's
actions in sending American troops to Bosnia argued: "The bottom line is that our

Constitution does not authorize [military deployments for humanitarian purposes].

We either have a Constitution or we don't."^^ I guess we will just have to take the
writer's word for it; he offers no text or other explanation in support of this bald

77. Arthur Mclntyre, Officials, Back Gun Control and 'Stop the Slaughter' Series: Letters,

St. Petersburg Times, Feb. 22, 1996, at 2 (emphasis added).

78. The writer also expresses an attitude that is perhaps more disturbing than mere ignorance

of the text. The writer suggests that the Constitution is a mere technicality which those opposing

gun control try to "hide behind." The writer further suggests the irrelevance of the Constitution by

referring to its age and, presumably, its obsolescence. In doing so, the author relegates the

Constitution to irrelevance on the issue—^it's ok to not know anything about the Constitution
because it is an irrelevant technicality.

79. Lawrence F. Pace, In Second Amendment, 'People' Are the Core, BUFFALO NEWS, Jan.

13, 1995, at B2.

80. George Schmall, Letters to the Editor: Support ofDeployment Shows Ignorance ofthe

Constitution, DAYTON DAILY NEWS, Jan. 8, 1996, at 7A.



1997] CONSTITUTIONAL ILLITERACY 707

assertion about the President's power. This gap also exists on the side of those

supporting the President: "I am appalled to read ... [a letter to the editor] calling
for Congress to impeach and remove the commander in chief for carrying out his
constitutional right and duty of directing his troops to join their European

counterparts in an effort to make [the] Balkan peace last."^*
The above quotes on gun control and presidential power may reveal an

additional problem with popular constitutional argument: Laypersons have an

attitude that one need not shoulder the burden of explaining why their argument
derives from the Constitution. If constitutional debate follows this road, it will

quickly resemble the old beer commercials where warring camps alternately yelled

"less filling" and "tastes great." Constitutional debate could become a shouting
match in which slogans substitute for argument.

Even when people take on the burden of offering an explanation, ignorance
of the Constitution's text can still be fatal to their argument. Consider the

following letter-to~the-editor that attacks a proposed bill to limit welfare payments

to unwed mothers:

It is my understanding that a child bom in the United States is a
citizen of the United States. The marital status of the mother has nothing
to do with that child being a citizen. Its rights are the same as those of
any other child, whether bom to a married or unmarried mother.

It therefore would appear that it would be unconstitutional to deny

welfare benefits to one child based upon the marital status of the mother.
^^

The writer fails to explain what "right" in the Constitution forbids discrimination
against unwed mothers and their children. The mere fact of citizenship cannot be
enough because virtually all laws discriminate between citizens on some basis.
Also, what provision of the Constitution supposedly prevents this discrimination?

The Equal Protection Clause? The Citizenship Clause? Perhaps the writer is
claiming that some Americans have a constitutional right to welfare. This claim,
however, would beg even more questions than an antidiscrimination argument
(such as from where does such a right derive and what are the limits of such a

right).

The problem of public ignorance of text is compounded by pubUc ignorance
of the historical setting and meaning of the Constitution.^^ Regardless of whether

81

.

Denis Huang, Keeping Peace in Bosnia, SALT LAKE Trib., Jan. 4, 1996, at A 10.
82. James B. Nash Jr., Letters From the People, ST. LOUIS POST-DISPATCH, Oct. 7, 1995,

at 14B.

83. Many commentators have observed that Americans have poor knowledge of their own

history. See Kammen, supra note 6, at 23-29, 230; Michael Kammen, Refuting Some Common
Myths: Constitution ] 787-]987, ST. PETERSBURG TIMES, May 31, 1987, at ID (describing a survey

that found Americans' knowledge of the Constitution to be "downright embarrassing."); Lewis H.

Lapham, The Importance ofStudying U.S. History, HARPER'S MAG., Jan. 1, 1996, at 7; Alan Miller,

Sad Truth ofRampant Ignorance Among Teens, San Diego UNION Trb., Feb. 21 , 1988, at Books-4

("In short, many 17-year-olds are woefully ignorant of their cultural heritage."); Barbara Vobejda,

Humanities Education: 'Startling Gaps'; Schools Emphasize Skills Over Knowledge, Study Says,



708 INDIANA LAW REVIEW [Vol. 30:693

one ultimately adopts history or drafter's intent as the method of constitutional
interpretation,^'* history must accompany text as the starting point of interpretation.

One must first understand the Constitution as written before moving to other
theories of constitutional interpretation. Only by gaining such an understanding

can one evaluate whether contemporary society is different in a way that is
relevant to the meaning ofthe Constitution. Thus, without a knowledge of history,

Americans are not armed to take the first step beyond text in interpreting the
Constitution.^^

In sum, many Americans suffer from constitutional illiteracy at a most basic
level—ignorance of text and history. Our constitutional crisis is that the
Constitution itself is missing from American constitutional debate. Only by
addressing constitutional illiteracy can we begin to resolve this crisis.

IV. Who Cares?

Before moving to solutions, we must ask a relatively simple question: Should
we care that the American public is constitutionally illiterate? Why not be content
that some people are minding the constitutional store? In fact, should not those
with the most interest be left to carry on constitutional debate—academics who
bring a genuine and enthusiastic commitment to the debate, litigants who bring
their personal causes, judges who bring their craft,^^ and public interest groups
who bring their ideological commitment. Indeed, that is one argument behind the
requirement of standing—issues will be best aired by those with a stake in their

Wash. Post, Aug. 31, 1987, at Al ("American schools are producing students with 'startling gaps

in knowledge' of history and literature. . . .").

84. Indeed, the theory of original intent is fraught with difficulties. First, whose views does

one count as the definitive statement on original intent? GEOFFREY R. Stone et al.,

Constitutional Law 41-42 (3d ed. 1996). The drafters? The ratifiers? Second, what does one
do when several of the supporters or drafters of a constitutional provision had different views of the

provision's meaning? Id. Third, at what level of generality should we look for an original intent:

broad concepts (e.g., equality) or specific outcomes (e.g., separate public schools are inherently

unequal)? Id. at 42; Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 490-91

(1981). Supporters of original intent theory have responses to these challenges. See Earl M.

Maltz, Rethinking Constitutional Law: Originalism, Interventionism, and the Politics

of Judicial Review 20-36 (1994); Earl M. Maltz, A Minimalist Approach to the Fourteenth

Amendment, 19 Harv. J.L. &Pub. Pol'Y 451, 454 (1996); Earl M. Maltz, The Failure ofAttacks

on Constitutional Originalism, 4 CONST. COMMENTARY 43 (1987); Antonin Scalia, Originalism:

The Lesser Evil, 57 U. CiN. L. Rev. 849, 862-65 (1989). However, those problems are not easily

solved.

85. For the importance of history in constitutional interpretation, even to those who reject

original intent as a method of interpretation, see infra notes 127-32 and accompanying text.

86. On the topic of judicial craft, see Sidney A. Shapiro & Richard E. Levy, Judicial
Incentives and Indeterminacy in Substantive Review ofAdministrative Decisions, 44 DUKE L.J.

1051,1053-54(1995).



1997] CONSTITUTIONAL ILLITERACY 709

outcome.^^ So, why should we care?
Although I hope that the last question is read by most as rhetorical, I offer

three answers. First, to do otherwise is to disrespect the abilities of others.

Ignoring constitutional iUiteracy would send a message that only the few, the

proud who engage in constitutional debate for a living are able to do so. This is
not to say that all people ought to be constitutional professionals. Only that

constitutional professionals ought not exclude laypersons from the conversation.

We ought to embrace Thomas Jefferson's declaration, made in support of his
proposal that the Constitution be re-written each generation, that *T am not among
those who fear the people."^^

Second, to do otherwise is to disrespect the autonomy of others.

Constitutional illiteracy should not be an excuse for cutting the bulk of America

out of constitutional argument, but rather a call to greater constitutional literacy.

As Thomas Jefferson has also written, "no safe depository of the ultimate powers
of the society [exists] but the people themselves: and if we think them not
enlightened enough to exercise their control with a wholesome discretion, the

remedy is not to take it away from them, but to inform their discretion."^^
Professor Joseph Goldstein has made a similar point in explaining why the
Supreme Court ought to write opinions that are intelligible to the average
American:

If Ours is to be an "intelligent democracy," if Our revolutions are to

be peaceful. We the People . . . must be able to learn, from Our own
reading of the Constitution and the Supreme Court's construction of it,

what rights We have and do not have, what values are and are not
protected, and what limits are and are not imposed on those who govern
on Our behalf. For then We can meet Our responsibiUty as informed
citizens to respond to what the Court did and why it did it.^

By choosing to ignore the problem of constitutional illiteracy—and, as Miller v.
Schoene^^ should teach, our decision is "none the less a choice"—we have decided

87. See Flast v. Cohen, 392 U.S. 83, 99 (1968) (requirement of standing "assure[s] that

concrete adverseness which sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions." (quoting Baker v. Carr, 369 U.S.

186, 204 (1962)). Of course, many commentators have noted that a standing requirement is not

necessarily the best way to ensure such adverseness. See Stone et al., supra note 84, at 100;

Antonin Scalia, The Doctrine ofStanding as an Essential Element ofthe Separation ofPowers, 17

SUFF. U.L. REV. 881, 891 (1983).

88. Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in Thomas

Jefferson, The Life and Selected Writings of Thomas Jefferson 615 (Adrienne Koch &
WiUiam Peden eds., 1993).

89. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in JOSEPH

Goldstein, The Intelligible Constitution: The Supreme Court's Obligation to Maintain

the Constitution as Something We the People Can Understand 5 (1992).
90. Goldstein, supra note 89, at 6.

91. 276 U.S. 272(1928).



710 INDIANA LAW REVIEW [Vol. 30:693

that the intelligent participation of many in our government is not worth the cost
of constitutional literacy.^^ In effect, we have devalued the voice of many
Americans in our government, and robbed them of an important means of

q-j

autonomy.

Third, constitutional illiteracy will make the Constitution irrelevant to public
decisionmaking and, in turn, threaten constitutional protections. As Solicitor
General Drew Days has observed, ignorance of the Constitution has led to an
"attitude that suggests we have lost confidence in our ability to deal with our
problems while remaining faithful to the Constitution^^^ Consequently, public

debate and government decisionmaking increasingly occur without consideration

of the constitutionality of government action; that issue will be determined by the

92. This choice may also be in tension with the principle of "equal citizenship" that

underlies the Constitution. U.S. CONST, amend. XIV, § 1. Professor Kenneth Karst defines the

principle of "equal citizenship" as follows:

While respect for each individual's basic humanity is the primary value in the

principle of equal citizenship, the principle also encompasses two related and

overlapping values: participation and responsibility. A citizen is a participant, a
member of a moral community who counts for something in the community's

decisionmaking processes. No less importantly, a citizen is a responsible member of

society, one who owes obligations to his fellow members. Both these values contribute

to self-respect, but they also have independent significance.

Kenneth L. Karst, The Supreme Court 1976 Term—Foreword: Equal Citizenship Under the
Fourteenth Amendment, 91 Harv. L. Rev, 1, 8 (1977). On this view, when we ignore the problem

of constitutional illiteracy, we deny people the background they need both to exercise their right

to participate intelligently in government and to fulfill their responsibility to do so.

93

.

This is a point that Justice Antonin Scalia and other members of the Supreme Court have

made, that the "remedy" for many wrongs should be found in the political process, not the courts.

See Romer v. Evans, 1 16 S. Ct. 1620, 1637 (1996) (Scalia, J., dissenting) ("I think it no business

of the courts (as opposed to the political branches) to take sides in th[e] culture war" over sexual

orientation); Planned Parenthood v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting)

("[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the

issue from the political forum that gives all participants, even the losers, the satisfaction of a fair

hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing

regional differences, the Court merely prolongs and intensifies the anguish."); City of Akron v.

Akron Ctr. for Reprod. Health, 462 U.S. 416, 465 (1983) (O'Connor, J., dissenting) ("[W]hen we

are concerned with extremely sensitive issues, such as [abortion], 'the appropriate forum' for their

resolution in a democracy is the legislature."); Ferguson v. Skrupa, 372 U.S. 726, 731 (1963)

(arguments about the wisdom of a law "are properly addressed to the legislature, not to" the courts);

Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("It is settled by various

decisions of this court that state constitutions and state laws may regulate life in many ways which

we as legislators might think as injudicious.").

94. Abe Zaidan, Young People Urged to Stand by Constitution, PLAIN DEALER, Dec. 2,

1994, at 2B (emphasis added) (U.S. Solicitor General Drew S. Days noted that "America knows

very little about the Constitution. People are not aware of what the Constitution provides in terms

of protection.").



1 997] CONSTITUTIONAL ILLITERACY 7 1

1

courts at a later date. Yet, to best safeguard constitutional values, each branch of

government should determine for itself whether proposed government action

violates the Constitution.^^ Although a court might ultimately halt unconstitutional

government action after some harm has been done, the legislature or executive can
prevent unconstitutional government action by preventing the governmentfrom
acting in the first place. By removing the Constitution from public debate, we
also allow Congress and the President to abdicate their roles as guardians of our

constitutional protections.^^

If the public and their representatives do not consider the Constitution, we
should expect a greater incidence of constitutionally suspect government action,

with a corresponding burden on constitutional rights. The effect will last at least
until someone with the money and the time is able to persuade a court to halt the
government action. The current political scene holds examples of the political
branches abdicating their role as constitutional guardians.

U.S. Solicitor General Drew S. Day has suggested that the Chicago police's
"sweep searches" of public housing projects were the result of such an

abdication.^^ Without reason to suspect individual residents of wrongdoing, the

police randomly searched apartments for evidence of drug dealing or other crime.^^

Unsurprisingly, a federal court quickly halted the sweep searches because they

violated the Fourth Amendment.^^ However, the court's action came too late for
those already subjected to the searches. As the federal court stated in enjoining
the police sweeps, such disregard for the Constitution by public officials in one

area of one city "will ultimately undermine the rights of each of us."^^

95. Thomas Jefferson expressed this view in a letter to Abigail Adams:

[NJothing in the Constitution has given [the courts] a right to decide [constitutional

issues] for the Executive, any more than [for] the Executive to decide for them. . . . The

judges, believing the law constitutional, had a right to pass a sentence of fine and

imprisonment, because that power was placed in their hands by the Constitution. But

the Executive, believing the law to be unconstitutional, was bound to remit the

execution of it ...

.

Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), in Stone et al., supra note 84,

at 55.

96. See Richard Dooling, Most of These Guys Are Lawyers, Right?, N.Y. TIMES, June 15,

1996, at A2 (arguing that lawmakers knowingly pass unconstitutional laws to score political points

with their constituents). Dooling suggests: "Maybe we should have a separate session of Congress

every so often so politicians can pass popular bills while pretending that the Constitution doesn't

exist." Id.

97. See Zaidan, supra note 94, at 2B.

98. See Stephen Braun, Chicago Police Seek Warrantless Sweeps to Seize Guns, L.A. TIMES,

Apr. 7, 1994, at A 16.
99. Pratt v. Chicago Hous. Auth., 848 F. Supp. 792, 796 (N.D. 111. 1994) (A preliminary

injunction was appropriate because "an overwhelming body of law demonstrates a substantial

likelihood that the [Chicago Police's] Search Policy violates the Fourth Amendment.") (emphasis

added).

100. /J. at 797.



7 1

2

INDIANA LAW REVIEW [Vol. 30:693

The Communications Decency Act of 1996 (CDA)'^^ contains another
example of constitutional abdication. A section of the CDA prohibits Internet
distribution of information about abortion. '^^ The section is a patently
unconstitutional restriction of free speech. Most obviously, the section conflicts
with the Supreme Court's precedent protecting abortion advertising.'^^ Also, the
law is presumptively unconstitutional because it regulates speech based on its

content.'^ President Clinton recognized these obvious points in signing the Act

into law when he stated that the Justice Department will "decline to enforce that
provision of current law."'°^ Yet, when Congress considered and passed the CDA,
the Constitution was missing in action.

Another provision of the CDA further demonstrates that the Constitution may
be irrelevant to the political branches of the federal government. One section
effectively bans dissemination of any "indecent" material on the Internet.'^

Generally, government can only ban dissemination of "obscene" material and is

limited to narrower regulations of indecent material. '^^ At the time of the

enactment, this part of the CDA was arguably unconstitutional. Although the
Justice Department later announced that it would delay enforcement of the

prohibition of indecent material, '^^ and an ultimately successful legal challenge

was in the works,'^ some universities and an Internet access provider began

101. Pub. L. No. 104-104, §§ 501-561, 1 10 Stat. 56, 133-43 (1996) (codified in scattered

sections of 18 U.S.C. and 47 U.S.C).

102. 18 U.S.C.A. § 1462 (West Supp. 1997). Prior to the CDA, federal law prohibited

distribution of abortion material by an "express company or common carrier." 18 U.S.C. § 1462

(1994). The CDA extended the prohibition to the Internet.
103. See Bigelow v. Virginia, 421 U.S. 809 (1975).

104. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations

are presumptively invalid."). To overcome this presumption, the government must show that the

law is necessary to achieve a compelling government interest. Id. at 382-83.

105. President's Statement on Signing the Telecommunications Act of 1996 (Feb. 12, 1996),

in 1 1 Weekly COMP. Pres. Doc. 218, 219 (1996). See also Davis v. United States, 512 U.S. 452,

463-65 (Scalia, J., concurring) (noting Justice Department's failure to enforce 18 U.S.C. § 3501

(1994)).

106. 47 U.S.C.A. § 223(d) (West Supp. 1997).

107. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 1 16 S. Ct. 2374 (1996);

FCC V. Pacifica Found., 438 U.S. 726 (1978); Miller v. California, 413 U.S. 15 (1973).
1 08. See Federal Judge Blocks Internet Indecency Law, DALLAS MORNING NEWS, Feb. 1 6,

1996, at ID ("A Justice Department spokesman said it was the agency's poUcy not to begin

prosecutions under a law while it was being challenged in court."); Peter H. Lewis, Judge Blocks

Law Intended to Regulate On-Line Smut, N.Y. TIMES, Feb. 16, 1996, at D5 (It is the Justice

Department's "policy not to begin prosecutions under a law while it was being challenged in

court.").

1 09. A provision of the CDA was challenged in the District Court for the Eastern District of
Pennsylvania. After a hearing, the district court judge entered an order enjoining enforcement of

the law. ACLU v. Reno, 929 F. Supp. 824, 827 (E.D. Pa. 1996), aff'd, 65 U.S.L.W. 4715 (U.S.
June 26, 1997). Next, pursuant to the expedited review provision in the CDA, the Chief Judge of



1 997] CONSTITUTIONAL ILLITERACY 7 1

3

censoring their Internet services to avoid legal problems.
'^^

In other words, the

CDA, though dormant and on the road to judicial interment, chilled speech.
Under these circumstances, one would have hoped for careful consideration of the
provision's constitutionality. Yet, Vice President Al Gore, Clinton Administration

cheerleader for the Information Superhighway, indicated that the Administration

was leaving the constitutionality of the indecency provision to the courts.^'' The
Constitution, then, was irrelevant to Executive Branch consideration of that

provision.

By removing the Constitution from public debate and lawmaking,
constitutional illiteracy threatens the vitality of the Constitution itself. If the public

and its representatives feel free to ignore the Constitution—abdicate their
responsibility to safeguard that document"^—law professors and other ivory-
tower-dwellers can do little in their academic journals and books to recapture the

spirit. Also, with the Supreme Court trimming its caseload to the bone,^^^ we
cannot expect that Court to settle all of our constitutional disputes. And, just

because judicial redress may be in the offing does not mean that ill-advised,
unconstitutional laws will not cause significant harm before a court can stop the
bleeding.

In sum, respect for others as well as the Constitution itself demands that we

the Third Circuit convened a three-judge panel to consider the constitutionality of the law.

Communications Decency Act of 1996, Pub. L No. 104-104, § 561, 110 Stat. 56, 142-43. That
panel ultimately determined that the CDA's restriction of indecent material on the Internet violated

the First Amendment's guarantee of the freedom of speech. ACLU v. Reno, 929 F. Supp. at 883.
The Supreme Court affirmed the three-judge panel's decision.

1 10. See Lewis, supra note 108, at Dl (an Internet access provider commented that "the law

is very vague in some areas, so what is required of me to be in compliance is in question."); Thomas

R. O'Donnell, Universities Worry Over Internet Content, Des Moines Reg., Mar. 6, 1996, at 1

("Professors, students and administrators at Iowa universities say the law could force them to

remove some material from Internet cites used by students and scholars. . . .").

111. See Peter H. Lewis, Protest, Cyberspace-Style, for New Law, N.Y. TIMES, Feb. 8, 1996,

at A14 ("Vice President Gore had said this week that he continued to support the

telecommunications bill, but he said the courts were the proper place to decide the constitutionality

of the Communications Decency Act.").

112. This responsibility could be seen as part of the "equal citizenship" that Professor Karst

has articulated. See supra note 92.

113. See Linda Greenhouse, Case ofthe Shrinking Docket: Justices Spurn New Appeals, N.Y.

Times, Nov. 28, 1989, at Al ("Since the middle of its last term, the Court appears to have cut back

sharply on the number of cases it is granting."); Al Kamen, Fewer Clerks Has No Appeal, Wash.

Post, June 8, 1994, at A21 ("this term's 84 ruhngs will be the fewest since 1961 . . ."); David G.

Savage, Docket Reflects Ideological Shifts: Shrinking Caseload, Cert. Denials Suggest an

Unfolding Agenda, A.B.A. J., Dec. 1995, at 40, 40 (1995) (during the October 1995 term, the Court

was on pace to "issue written decisions in roughly 75 cases, about half the workload of a typical

term during the 1980' s."); David G. Savage, With a Lighter Caseload, Supreme Court Moving

Toward End ofTerm, L.A. TIMES, June 5, 1993, at A16 ("This term, the court is expected to issue

written decisions in 1 16 cases, down from a norm ofmore than 150 per term in the mid- 1 980' s.").



714 INDIANA LAW REVIEW [Vol. 30:693

solve the problem of constitutional illiteracy. To respect our fellow citizens, we
must treat them as actors who are capable of understanding and acting on
constitutional principles. To respect the Constitution, we must ensure that the
Constitution's protections are a part of political decisionmaking, both by the

public and its representatives.

V. What Now?

Seidman and Tushnet offer a solution to a narrow problem—^how to revitalize
constitutional argument among constitutional professionals. Unfortunately, as
noted above,""^ this solution does not address the problem of constitutional

illiteracy that afflicts constitutional argument in the general pubHc. Before the

general public can participate in the type of debate that Seidman and Tushnet
address, they must learn the building blocks of such argument. The following are
some initial suggestions for providing the building blocks for constitutional
literacy.

A. What Should Americans Know?

1. Text.—^First, there must be more popular attention to text. The text of the
Constitution should be the foundation for all types of constitutional argument.

Even if later arguments are based on the Constitution's history, structure, or
purpose, such arguments assume the existence of text that has a history, creates

structures, or has a purpose.

Take the example of whether the Constitution protects a woman's decision to
seek an abortion. Popular proponents of constitutional protection often appeal to

the right to privacy. For the argument to work as constitutional argument,
however, the right to privacy must be located within the Constitution's text. As
to the proper text, a person has several choices. First, as some have suggested, the
woman's right to choose to end her pregnancy may be linked to the Equal
Protection Clause.

^^^
Second, some may adopt the privacy approach taken by

Justice William Douglas in Griswold v. Connecticut}^^ Justice Douglas argued

that several amendments create overlapping zones of privacy."^ Third, as the

Court has held since Roe v. Wade}^^ the right is a component of the "liberty"

114. See supra note 44 and accompanying text.

1 15. U.S. Const, amend. XIV. See Cass R. Sunstein, The Partial Constitution 272-85

(1993) ("We might . . . explore another argument on behalf of the abortion right, one that is

grounded in principles of equal protection. This argument sees a prohibition on abortion as invalid

because it involves an impermissibly selective co-optation of women's bodies."); Guido Calabresi,

Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores),

105 Harv. L. Rev. 80, 95-96 (1991).

116. 381 U.S. 479 (1965).

117. See id. at 484 ("The foregoing cases suggest that specific guarantees in the Bill of Rights

have penumbras, formed by emanations from those guarantees that help give them life and

substance. Various guarantees create zones of privacy.") (citations omitted).

118. 410 U.S. 113(1973).



1 997] CONSTITUTIONAL ILLITERACY 7 1

5

protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. '^*^

2. Beyond Text}^—^Even after selecting a text, one may find that the answer
is not clear because the chosen text is susceptible to more than one interpretation.
On abortion, the Due Process Clause will pose particular difficulties. How does
the speaker overcome the fact that the clause speaks only of procedure? On its
face, the clause allows infringements of liberty when "due process" procedures are
followed. Once that obstacle is surmounted, the speaker must determine what
activities or choices count as "Uberty"? Also, can government never restrict

liberty? Or, only under certain circumstances? What circumstances and how do
these circumstances relate to abortion?

Text alone cannot answer all our questions. *^^ Professors Jordan Steiker,

Sanford Levinson, and J.M. Balkin illustrate this point with the example of the

Presidential Qualifications Clause. '^^ The Clause reads in pertinent part: "No
person except a natural bom Citizen, or a Citizen of the United States, at the time
of the Adoption of this Constitution, shall be eligible to the office of

President . . . ."^^^ As the authors demonstrate, under one literal reading of this
text, all Presidents since Zachary Taylor were not qualified to hold that office.'^"*

They point out that the phrase "at the time of the Adoption of this Constitution"

can be read to modify both "Citizen of the United States" and "natural bom
Citizen."^^^ Thus, to be qualified for the Presidency, one must have been a citizen

of the United States—^natural bom or otherwise—at the "time of the Adoption of
the Constitution." No President since Zachary Taylor could meet these
requirements.

Although as a matter of text this interpretation must be counted as

"reasonable," few if any people—either constitutional professionals or
laypersons—would likely accept this interpretation. "It's silly," or "That's just
plain stupid," might be some of the reactions. But why? If the answer is,
"Because the Constitution set up a govemment that was supposed to endure over
time," the speaker has gone outside the text to rely on the purpose of the document

1 19. See id. at 153; see also Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992).

1 20. Justice Antonin Scalia is one of the few commentators to self-consciously acknowledge

the difficulty of making the choice of which source(s) to consult besides the text of the Constitution

itself. Scalia, supra note 84, at 862-65; see also Philip Bobbitt, Constitutional

Interpretation (1991).

121. See Bobbitt, supra note 7, at 38.

122. Jordan Steiker et al., Taking Text and Structure Really Seriously: Constitutional

Interpretation and the Crisis ofPresidential Eligibility, lA Tex. L. Rev. 237 (1995). The article

was spurred by a contest published in Contest: Was George Washington Constitutional?, 12

Const. Commentary (1995).
123. U.S. Const, art. II, § 1, cl. 5.

1 24. Steiker et al. , supra note 1 22, at 239-40.

125. They argue that the placement of the comma after "United States" requires this

interpretation on a strictly textual basis. "Indeed, it seems clear enough that our reading of the text

is absolutely required under a plain meaning approach that pays due attention to the Constitution's

words and its punctuation." Id. at 245.



716 INDIANA LAW REVIEW [Vol. 30:693

or the intent of those who drafted it. Either way, a source outside of the four
comers of the text comes into play.'^^

Thus, constitutional literacy requires some constitutional knowledge beyond
the text alone. As suggested above, history ought to be a primary source beyond
text.^^^ History shows that many provisions of the Constitution were written to
address problems existing at the time of the founding. Any constitutional theory
must take account of that fact and explain whether and, if so, how changed
circumstances affect the current application of these provisions. '^^ For example,

one might take a modified Jeffersonian view of constitutional argument. Just as

Jefferson believed that each generation should be allowed to enact its own
constitution,'^^ a modified Jeffersonian view might allow each generation to

interpret the existing Constitution as if it had been adopted by that generation, in

a way that meets the needs of their time. This view recognizes that any law,
including a Constitution, responds to the felt needs and exigencies of that time.

A modified Jeffersonian argument, then, rests on an understanding of the way the
Constitution functioned for the founding generation. Thus, even an argument that

rejects history as a method of constitutional interpretation must at least address
history in justifying that theory.

To the extent that the public is becoming historically ilUterate, a primary
source for understanding the Constitution as written has been eroded. '^^ To have
any hope of generating a meaningful constitutional dialogue, we must enhance the
general awareness of the Constitution's text and our Nation's history. Yet, what

should be included as the essentials of the "Nation's history" is not an uncontested

issue. Although we may not fear willful ignorance or deception regarding the
nation's official history a la the former Soviet Union,'^' choices about emphasis

126. Professors Steiker, Levinson, and Balkin undertake such inquiries in their Article. Id.

at 243-52.

127. See supra notes 83-85 and accompanying text.

1 28. Professor Lawrence Lessig has called this the problem of "translation" of past meaning

to present circumstances. Lawrence Lessig, Understanding Changed Reading: Fidelity and Theory,

47 Stan. L. Rev. 395 (1995); Lawrence Lessig, Fidelity in Translation, 71 TEX. L. Rev. 1165

(1993).

1 29. Letter from Thomas Jefferson to James Madison (Sept. 6, 1 739), in 1 THE REPUBLIC OF

Letters: The Correspondence between Jefferson and Madison, 1776-1826, at 631-36

(Norton 1995); Letter from Thomas Jefferson to Samuel Kerchval (July 12, 1816), in Thomas

Jefferson, The Life and Selected Writings of Thomas Jefferson 615 (A. Koch & W. Peden
eds., 1993).

1 30. On the public's poor knowledge of U.S. history, see supra note 83.

131. See David Remnick, Lenin' s Tomb: The Last Days of the Soviet Empire 3 1 -40

(1993); Soviet History Books to Fill "Blank Spots" for the High Schools, N.Y. TIMES, Sept. 4,

1988, § 1, at 9 ("Soviet high school students will be given supplements to their history books by

the start of next year to fill in the 'blank spots' in the knowledge of their country's past . . . .").

That is not to say that textbooks on American history have not been criticized for omitting or

distorting aspects of U.S. history. See James W. Loewen, LIES MY TEACHER TOLD ME:
Everything Your American History Textbook Got Wrong 13-17(1 995).



1997] CONSTITUTIONAL ILLITERACY 717

and inclusion will be contentious.'^^ No one said it would be easy.

B. What Can Lawyers Do?

At first, an obvious place to find a solution for the crisis in popular
constitutional debate would seem to be the popular media. Yet, the quality of
constitutional analysis in these sources is not guaranteed. Consider the following

quote in Newsweek magazine summarizing the Supreme Court's decision in
Adarand Constructors, Inc. v. Pena}^^

Last week the U.S. Supreme Court seemed to scale back the federal
government's own affirmative action. By a vote of 5-to-4, the justices
fashioned a legal test that will make it very difficult, if not impossible, to
preserve government programs that give an edge to minorities and

women. The decision in Adarand Constructors v. Pena was written in a
murky legalese. But the point was articulated by the plaintiff. Randy
Pech, whose Adarand construction outfit in Colorado had lost out to a
Hispanic-owned company under a program that earmarked highway
contracts for minorities. The burly Pech asked why he should be
discriminated against to make up for discrimination that occurred more
than a century ago.'^"^

Regardless of whether one agrees with the Court's decision in Adarand, this quote

is rife with misstatements about the case.

First, and perhaps most basic, Adarand addressed affirmative action programs
based only on race and not gender. '^^ Second, the Court did not "fashion" a legal

test in Adarand. Rather, the Court merely held that the pre-existing test that

applied to state affirmative action programs should apply to federal government

affirmative action programs. ^^^ Third, the affirmative action program challenged

in Adarand was not intended to remedy "discrimination that occurred more than

1 32. See, e.g. , Dan Quayle, A Case ofPolitical Correctness Gone Wild, ARIZ. REPUBLIC, Nov.

12, 1995, at G5 (criticizing the National Standards for United States History that the federal

government commissioned from the UCLA National Center for History in the Schools as "a case
of political correctness gone wild."). Also, the task of formulating a curriculum cannot be value-

neutral. See Suzanna Sherry, Responsible Republicanism: Educatingfor Citizenship, 62 U. Cw,

L. Rev. 131, 158 (1995) ("It is simply not possible to eliminate values from education.").

133. 115S.Ct. 2097(1995).

134. Evan Thomas et al.. Rethinking the Dream, NEWSWEEK, June 26, 1995, at 18, 18.

1 35. Indeed, gender classifications are governed by a separate legal test. See Craig v. Boren,

429 U.S. 190, 197 (1976) ("[Cjlassifications by gender must serve important governmental

objectives and must be substantially related to achievement of those objectives."); accord United

States V. Virginia, 116 S. Ct. 2264 (1996).

136. The Court had previously held in City ofRichmond v. J.A. Croson Co., 488 U.S. 469

(1989), that state affirmative action programs are subject to strict scrutiny under the Equal

Protection Clause.



718 INDIANA LAW REVIEW [Vol. 30:693

a century ago"—presumably a reference to slavery. ^^^ Rather, the law was
intended to correct for current racial disadvantages in the construction industry.

^^^

In sum, anyone who relied on Newsweek to explain the Court's decision in
Adarand would have come away sorely misinformed. So, one source that holds
hope for educating the public about the Constitution—the popular media-—may
not always be a reliable source of information.

Perhaps, then, we need writing by constitutional professionals that is aimed
at the constitutional layperson. On this point, constitutional professionals should
take a lesson from Stephen Jay Gould, Professor of Zoology and Geology at

Harvard University. Professor Gould has written several books that make the
complexity of science accessible to the layperson. In the Prologue to his book
Bullyfor Brontosaurus: Reflections in Natural History, Professor Gould explains

why such writing is one of the highest callings in any discipline:

In France, they call this genre vulgarisation—^but the implications are
entirely positive. In America, we call it "popular (or pop) writing" and its
practitioners are dubbed "science writers" even if, like me, they are

working scientists who love to share the power and beauty of their field
with people in other professions.

In France (and throughout Europe), vulgarisation ranks within the

highest traditions of humanism, and also enjoys an ancient

pedigree—from St. Francis communing with animals to Galileo choosing
to write his two great works in Italian, as dialogues between professor and

students, and not in the formal Latin of churches and universities. In

America, for reasons that I do not understand (and that are truly perverse),

such writing for nonscientists lies immured in
deprecations

—
"adulteration," "simplification," "distortion for effect,"

"grandstanding," "whizbang." I do not deny that many American works
deserve these designations—^but poor and self-serving items, even in vast
majority, do not invalidate a genre. "Romance" fiction has not banished
love as a subject for great novelists.

^^^

Professor Gould also offers his view of why this bias against popular writing is
harmful.

I deeply deplore the equation of popular writing with pap and

distortion for two main reasons. First, such a designation imposes a

crushing professional burden on scientists (particularly young scientists

without tenure) who might Hke to try their hand at this expansive style.
Second, it denigrates the intelligence ofmillions ofAmericans eagerfor
intellectual stimulation without patronization. If we writers assume a
crushing mean of mediocrity and incomprehension, then not only do we

137. Thomas et al., supra note 134, at 18.

138. See Adarand, 1 15 S. Ct. at 2102-04.

1 39. Stephen Jay Gould, Bully for Brontosaurus: Reflections in Natural History

11 (1991).



1997] CONSTITUTIONAL ILLITERACY 719

have contempt for our neighbors, but we also extinguish the hght of
excellence. The "perceptive and intelligent lay person" is no myth. . . .^''^

Last, Professor Gould says that accessible, popular writing should not require
compromise in intellectual integrity. "The rules are simple: no compromises with

conceptual richness; no bypassing of ambiguity or ignorance; removal ofjargon,

of course, but no dumbing down of ideas (any conceptual complexity can be
conveyed in ordinary English).

''^^^

By substituting the words "law" and "lawyer" for "science" and "scientist" in
the above quotations, we can see how Professor Gould's words hold true for the
legal profession. Specifically, constitutional professionals can aid the cause in two

ways. First, legal writing can target general, lay audiences. Books by Professors
Robert Bork, Stephen Carter, Lawrence Tribe, and Harry Wellington, to name a
few, have made recent efforts along these lines. ^'^^ Also, articles, op-ed pieces, or
letters-to-the-editor in newspapers or other periodicals of general circulation serve

the same function. ^"^^ These authors do the remarkable service of making
constitutional issues accessible to a wide audience while not dumbing down the
material.

Unfortunately, the works by the above authors are remarkable because of their

rarity. As Professor Gould noted in other fields, popular writing also is not valued
in the legal profession. For the practitioner, such writing is not "billable." For the

academic, such writing is not of sufficient "scholarly" or "academic" depth to

quaUfy the author for tenure.
^"^

For legal academics, their bias against popular legal writing can be traced to

the elitism inherent in academia. Professor J.M. Balkin has noted:

1 40. /J. at 11 - 1 2 (emphasis added).

141. Id. at 12 (emphasis added).

1 42. See, e. g. , ROBERT H. BoRK, THE TEMPTING OF America: The Political Seduction of

THE Law (1990); Stephen L. Carter, The Confirmation Mess: Cleaning Up the Federal
Appointments Process (1994); Stephen L. Carter, The Culture of Disbelief: How
American Law and Politics Trivialize Religious Devotion (1993); Laurence H. Tribe,
Abortion: The Clash of Absolutes (1990); Harry H. Wellington, Interpreting the

Constitution: The Supreme Court and the Process of Adjudication (1990).

143. See Linda S. Eads, The Abortion Debate: Waiting for Imminent Supreme Court

Decision, DALLAS MORNING NEWS, June 28, 1992, at IJ; Paul Gewirtz, Who Is Stephen Breyer?,

Hartford COURANT, July 24, 1994, at Dl; Paul Gewirtz, Litmus Testfor Justices? Legal Views

Do Matter, BALTIMORE EVENING SUN, Apr. 29, 1993, at 19A; Laurence H. Tribe, Rule ofthe 27th

Amendment Joins the Constitution, WALL ST. J., May 13, 1992, at A15.
144. Judges Harry Edwards and Richard Posner have argued that such an attitude exists

within the academy also toward doctrinal scholarship. See Harry T. Edwards, The Growing

Disjunction Between Legal Education and the Legal Profession: A Postscript, 91 MiCH. L. REV.

2191, 2194-95 (1992); Richard A. Posner, The Present Situation in Legal Scholarship, 90 YALE

L.J. 1 1 13, 1 1 17-19 (1981); see also Kronman, supra note 45, at 265 ("Every law teacher belongs

to the community of university scholars, and it is to this community that his or her research and

writing are primarily addressed.").



720 INDIANA LAW REVIEW [Vol. 30:693

Despite their often egalitarian views, legal academics are socialized into

a culture that privileges elite values. After all, like everyone else,

academics hope to succeed in their chosen calling; and they need to

distinguish themselves by being smarter, by being more learned, and by
possessing greater expertise. Thus, saying that legal academics have

tendencies towards elitism is like saying that they have tendencies towards

breathing oxygen.
'"^^

And, Professor Balkin suggests that an "encounter with populist values"—values
shared by the pubUc at large

—
"may help [law faculties] balance their natural

proclivities."''*^ Writing popular legal material could provide just such an

opportunity. Unfortunately, however, little incentive currently exists for the

writing of popular legal works, such as newspaper and magazine articles, because

they are not valued in the promotion and tenure system that most legal academics

work within.'"*^
And, even the distinguished examples cited above can be inaccessible because

of the problem of constitutional illiteracy. For example, none of the above

authors, except for Wellington,'"*^ included a copy of the Constitution in their work

for the reader's reference. The reader has no sense of the document as a whole,
only of the selected words that the author chooses to quote. The reader is
encouraged to take it on faith that the text means what the author says it says—not
a good way to encourage independent thinking.

Last, legal scholarship aimed at the layperson must make the case that
constitutional literacy is relevant—why it is worth the reader's attention. It is a
mark of elitism and extreme arrogance to expect a wide audience to heed your
words, rather than persuading the listener why one's words are worth attention.
Unlike legal academics—professionals at contemplating their own navels—who
tend to find these discussions interesting in themselves, the non-academic must be

persuaded to devote scarce time to the author's material. In the language of the

litigator, we must make our case. And, if the people ultimately ignore the
message, we may have done all we can. For, it is at best unclear whether
government—and certainly academics—should prescribe what the general public
finds important or worthwhile.''*^ We must be good advocates, not cultural czars.

145. J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE LJ.

1935, 1950 (1995) (reviewing Cass R. Sunstein, Democracy and the Problem of Free Speech

(1993)).

146. Id.

147. Most tenure writing requirements are stated in terms of scholarly articles published in

professional journals and reviews. See JULIUS Getman, In THE Company of Scholars: The

Struggle for the Soul of Higher Education 43-49, 109-10 (1992); Gordan Fellman, On the

Fetishism ofPublications and the Secrets Thereof, ACADEME, Jan.-Feb. 1995, at 26, 26-27.

148. See WELLINGTON, supra note 142, at 159-80.

149. Professor J.M. Balkin has recently addressed this point in the context of the First

Amendment's free speech guarantee. Balkin, supra note 145. Stated very simply (perhaps too

simply), two currents—populism and progressivism—are prevalent in free speech as well as other



1997] CONSTITUTIONAL ILLITERACY 721

In the end, members of the legal profession—specifically, constitutional
professionals—must play a role in improving constitutional literacy. We are the
ones with knowledge of the Constitution and training in its interpretation and

application; after all, it's ourjob! And, part of that job should be making our work
and its object (the Constitution) accessible to the general public. This will not

happen, however, until we recognize that obligation and offer incentives for our
fellow constitutional professionals to do so. We must give practicing lawyers a
reason to devote time to this cause. For example, states that have a Continuing

Legal Education requirement might give CLE credit for legal writing in the
popular media, or doing civics presentations for school children. And law schools
might consider rewarding faculty who take the time and effort to write non-
technical pieces that attempt to educate the public. As the pro bono arena has
shown, unless lawyers are enticed with a carrot or threatened with a stick, they are

unlikely to alter their behavior in an unselfish direction.

Conclusion

Seidman and Tushnet's Remnants ofBeliefhas served as a jumping-off-point

for this Essay's discussion of constitutional illiteracy. This Essay is more of a call

to arms than a set of ready-to-go solutions. Such solutions will only come when
the bar and academia recognize the problem and commit themselves to its

solution. In the meantime, Seidman and Tushnet's advice—self-awareness and
tolerance—will have limited application. Among constitutional professionals, this
advice holds promise. In the larger America, however, we first need to put the
Constitution back into constitutional argument.

areas of constitutional law. See id. at 1943-44. A central value of populism is the value of and
confidence in the opinions of the average American. See id. at 1945-47. Progressivism, on the

other hand, looks at the unalloyed popular will with suspicion, preferring some form of removed

deliberation as a filter for raw public preferences. See id. at 1947-48. Balkin points out that

academics tend to fall into the progressive mindset, which has a tendency to prescribe what the

public should know or how the public should act. Id. at 1951. This Essay does not attempt to

resolve the tension between populist and progressive tendencies, and ultimately lies somewhere

between them. In a progressive vein, this Essay argues that we should value constitutional literacy.

In a populist vein, however, this Essay argues that constitutional literacy should not be force-fed,

but rather that legal writers should persuade the public to consider their work.