2 - Constitutional Law as Civic Education - George Thomas

We are awash in concerns that our political institutions are failing, and that our political
and cultural divisions dwarf what we share in common. In the face of our seemingly
implacable differences, we are witnessing calls to arms for "conclusive victory" in our "cold
civil war," and even threats of something hotter. Concern for the future of the American
union is not overwrought. America has faced more serious divisions in the past — after all,
we did have an actual civil war — but we should not presume the inevitable endurance of
the American experiment. Political orders are finite entities; historically speaking, the
American experiment is bound to come to an end.

Yet perhaps America's constitutional history can forestall the inevitable. Perhaps American
constitutional law can help us rediscover the political principles we share in common and
set the bounds of our disagreements. It's an odd thought in this dyspeptic era, but our
conflicts may offer an opportunity to engage the citizenry in constitutional education. After
all, polarized as we are, the one thing we share in common (if surveys are to be believed) is
our ignorance of the Constitution. 

Complaints of civic ignorance are as old as the Republic. Writing in the months just before
the Constitutional Convention of 1787, Noah Webster bemoaned the fact that Americans
didn't know their history. It was in our history, Webster insisted, that we would discover
our political principles and forge a common identity. Neglecting our history, we lacked
knowledge of ourselves as Americans.

Our constitutional history can offer instruction on basic civic knowledge, such as the three
branches of government within the separation of powers, which three quarters of
Americans cannot name. But much more than basic knowledge, turning to our
constitutional history is a way to reanimate the principles we share in common and forge a
common civic identity. American constitutional principles have come to life over the course
of our history as we have wrestled with how to apply enduring ideals in new cases and
contexts.

"We the people" set the Constitution in motion over two centuries ago, but maintaining the
order it established will require the participation of new generations. We can recover our
constitutional history by revisiting the court cases that force us to answer difficult
questions about how our Constitution and its institutions are supposed to interact. This not
only offers us a civics lesson that doubles as active engagement with constitutional
institutions and principles; it also shows us that the Constitution's future will depend on
citizens today. 

CONSTITUTIONAL STRUGGLES OVER CIVIC IDENTITY

American constitutional law is no less than an extended commentary on the meaning of
America taught as part of a liberal and civic education. As Yale Law professor Bruce
Ackerman puts it, "To discover the Constitution is to discover an important part of oneself 
— insofar as one recognizes oneself as an American." Americans share a common history
more than anything else. Understanding our history requires not just knowledge of the
past, but an understanding of the political principles that underlie that history and the
Constitution itself. By focusing on the historical development of American constitutional
law, we can use our shared history to begin rediscovering shared principles.

Yet we begin in division. Rather than turning first to constitutional institutions, let us start
with we the people. It's here that we can see most clearly the struggles over the
constitutional values and principles that our political institutions were meant to protect.
And it is here, too, that we can see the things we must agree on.

If Americans tend to follow Abraham Lincoln in thinking that the nation was "conceived in
Liberty" and "dedicated to the proposition that all men are created equal," we should notice
that the first clear command for equality in the Constitution comes by way of an
amendment ratified in 1868, some seven decades after the Constitution itself was ratified.
Just who was included in we the people was contested for much of our history.
Constitutional provisions like Article I, Section 9's prohibition on titles of nobility and
Article IV's "full faith and credit" clause were suggestive of the Declaration of
Independence's pronouncement of political equality. Yet like citizenship, equality occupied
an uncertain place in the antebellum constitutional order prior to the ratification of the
14th Amendment.

Ratified in 1868, the 14th Amendment first made citizens of all persons born in the United
States and subject to its jurisdiction. This was almost certainly a response to the
infamous Dred Scott decision of 1857, where the Court held that blacks, enslaved or free,
were constitutionally speaking "a subordinate and inferior class of beings...so far inferior
that they had no rights which the white man was bound to respect."

The 14th Amendment not only made blacks born in the United States citizens, but it
prohibited the states from abridging the "privileges or immunities" of citizenship,
guaranteeing all citizens the equal rights — like the right to bring suit in court — that Dred
Scott was denied because of his race. The amendment, however, continues with an
interesting distinction. Moving beyond citizenship and the rights that attach to it, it then
prohibits the states from denying any person life, liberty, or property without due process
of law and similarly prohibits the states from denying any person the equal protection of
the laws. The due-process and equal-protection clauses can be seen to embrace Lincoln's
notion of both equality and liberty as articulated in his Gettysburg Address, which framed
his understanding of the Constitution. But even if we agree on these twin principles of the
American Constitution, just what they entail and how they ought to be applied has been the
source of deep disagreement, much as we disagreed over just who could be a citizen.

Consider Frederick Douglass's argument, in the years before the Civil War, that slavery had
mastered the Constitution: Freedom of speech and the press were subverted to protect
slavery. Postmasters in several states refused to accept or deliver abolitionist literature,
and numerous Southern states forbade criticism of slavery or teaching blacks — free or
enslaved — to read and write. What's more, Douglass insisted that a republican form of
government, as found in Article IV, Section 4 of the Constitution, prohibited such
distinctions: "Whatever may be tolerated in monarchical and despotic governments, no
republic is safe that tolerates a privileged class, or denies to any of its citizens equal rights
and equal means to maintain them."

Reasoning like Douglass's helped frame the Civil War amendments as central to completing
the Constitution. Was Douglass part of we the people? He voted in Massachusetts and acted
to shape our constitutional understandings, making many of the critical arguments about
the underlying principles of the Constitution with regard to human equality that Lincoln
would later so sublimely express. But if we follow American constitutional law and
the Dred Scott decision, Douglass was not only not a citizen, but exercised his liberty at the
forbearance of the people of Massachusetts and New York. Constitutionally speaking, he
had no rights anyone was bound to respect. Against this backdrop, Douglass spoke of the
"new birth of freedom" (in Lincoln's immortal words) offered by the Civil War
amendments. They overturned — abolished, we might say — the idea that blacks were not
citizens and had no rights according to the Constitution: "The Fourteenth Amendment
makes him a citizen, and the Fifteenth Amendment makes him a voter."

But history was not so simple. The nation soon began a retreat from the promise of racial
equality that the Court tragically ratified in Plessy v. Ferguson in 1896, holding that
"separate, but equal" was constitutionally permissible. The franchise, too, was denied to
African-Americans. Against this backdrop, Douglass criticized the Court for defeating "the
manifest purpose of the Constitution, nullifying the Fourteenth Amendment, and placing
itself on the side of prejudice, proscription, and persecution."

Was all of this consistent with the intention of those who framed and ratified the Civil War
amendments? Should we be bound by that intention? This is precisely the question
in Brown v. Board of Education, decided in 1954. There the Court had to decide whether
racial segregation in public schools was consistent with the 14th Amendment's command
that no state shall deny a person the equal protection of the laws. This may seem like an
easy case, but we would benefit from studying the constitutional struggle around racial
equality. While the Court found that in the field of public education segregation is
unconstitutional, there was deep resistance. In the "Southern Manifesto" of 1956, a number
of Southern members of Congress and Southern states pledged to bring about a reversal of
the Brown decision, insisting it was constitutionally unjustified and went against nearly a
century of Supreme Court precedent.

Today, our understanding of the Constitution owes more to Douglass than it does to Roger
Taney, chief justice and author of the Dred Scott decision. But we should not take this for
granted; it required a profound and ugly struggle over the soul of the nation. Progressives
are too prone to root America in slavery itself: When they say the country was founded in
1619 and not 1776, they neglect the fact that, in the hands of Douglass and Lincoln, 1776
became a way to attack the legacy of slavery and racism as inconsistent with a creedal
understanding of American constitutionalism. Douglass demanded that America live up to
its own ideals. Conservatives would do well to remember that when William F. Buckley in
1955 launched the modern conservative movement by insisting he would stand athwart
history and yell "stop," one of the central things he would have stopped was the civil-rights
movement — not for refined reasons of constitutional law, but to maintain the Southern
way of life, which just happened to include racial apartheid.

Canvassing our history by way of constitutional struggles, beginning with the debates over
ratification that helped bring us the Bill of Rights, we can come to understand the very real
struggles over the meaning of America. And we can see, too, the importance of ordinary
citizens in shaping the idea of America. It is ultimately American citizens — and those who
attach themselves to America by becoming citizens — who carry the American
constitutional project forward.

We can agree with Douglass that, if we are committed to human equality, citizenship must
be understood in civic terms and not in terms of race or ethnicity. But knowing this history
and working through the constitutional reasoning of cases like Plessy and Brown remains a
useful exercise. In a small way, incongruous details can challenge our assumptions. The
ugly Plessy opinion was authored by Justice Henry Brown from Massachusetts who was
educated at Yale and Harvard Law School. The eloquent dissent we would rather
remember was authored by Justice John Marshall Harlan, a former slaveholder from
Kentucky who initially opposed the Reconstruction era amendments, but became the most
powerful advocate for the 14th Amendment's promise on the Supreme Court.

On a larger scale, recounting these constitutional struggles helps us understand how the
struggle over civic identity and racial and ethnic discrimination has been a very real part of
American history. Knowing this history helps us become more fully American. Becoming an
American means embracing the exalted dimensions of our national character as articulated
by Lincoln and Douglass; it also means not just acknowledging but understanding the awful
incidents of racial, ethnic, and religious discrimination permitted and at times committed
by our formal institutions.
It also forces us to confront other distinctions. Could the state of Illinois, for example, deny
Myra Bradwell a license to practice law precisely because she was a woman? Is it
constitutionally permissible to base such judgments on "divine ordinance," or, in the words
of Justice Joseph Bradley in Bradwell v. Illinois (1873), on the notion that "the natural and
proper timidity and delicacy which belongs to the female sex evidently unfits it for many of
the occupations of civil life"? The Court held that Illinois could make such distinctions.
Despite the advocacy of Susan B. Anthony and Elizabeth Cady Stanton, whose readings of
the Constitution from the 19th century remain powerful today, the 19th Amendment did
not give women the right to vote until 1920 (even if Myra Bradwell was admitted to the bar
in 1890).

Ending sex discrimination has been a constitutional struggle. Justice Ruth Bader Ginsburg,
as a lawyer in the 1970s, began to push the Court — and the country — to prohibit many
forms of discrimination on the basis of sex. But even accepting a general principle of
equality, there remain important disagreements. Was Justice Ginsburg right in United
States v. Virginia, when she wrote for the Court requiring that the Virginia Military Institute
admit female students? Virginia, Ginsburg reasoned, could not offer one sort of education
for its sons at a public institution like VMI, while offering nothing similar for its daughters.
Did it matter that VMI had been an all-male institution for well over a century? 

We must continue to wrestle with what sorts of distinctions are constitutionally

permissible, but we can do so from a common commitment to constitutional equality.
Revisiting our constitutional history forces us to understand that equality is something we
have striven to achieve by way of struggles over civic identity and belonging. These
struggles have helped us to better understand constitutional principles like equality, and
they have been a central feature of constitutional self-government in America. 

DEMOCRACY, RIGHTS, AND CONSTITUTIONAL STRUCTURE

The same year the Court decided Bradwell, the Comstock Laws — a series of acts for the
suppression of trade in, and circulation of, obscene literature and articles of immoral use 
— prohibited the promotion of literature on contraception as part of an effort to suppress
immoral activity like premarital sex. Connecticut passed a similar law that prohibited not
only exchanging information regarding contraception, but the sale and use of
contraception. Was the law aimed at protecting a male-dominated workplace from women,
who with the aid of contraception could put off having children to further their careers?
Was it rooted in religious teaching? Was it a secular effort to draw a clear connection
between marriage and procreation? If so, could it apply to married couples?

 In Griswold v. Connecticut, in 1965, the complete prohibition of contraception was

challenged as it applied to married couples. Writing for the Court, Justice William Douglas
struck the prohibition down, insisting that we "deal with a right of privacy older than the
Bill of Rights." More important, Douglas turned to various textual provisions in the Bill of
Rights — such as the Third Amendment's prohibition against quartering soldiers in a time
of peace and the Fourth Amendment's prohibition on unreasonable searches — as creating
zones of privacy that radiated from the "penumbras" in specific textual guarantees. In other
words, specific guarantees in the Bill of Rights suggested the projection of personal privacy.
Douglas's close friend and fellow Roosevelt appointee, Justice Hugo Black, thought this
utter nonsense. In a vigorous dissent, Black insisted, "I like my privacy as well as the next
one, but I am nevertheless compelled to admit that government has a right to invade it
unless prohibited by some specific constitutional provision."

Black argued that only those rights clearly enumerated in the Bill of Rights, such as
freedom of speech and religion in the First Amendment, were constitutionally protected.
Even more, he insisted that the "privileges or immunities" clause of the 14th Amendment
referred only to these rights, and that the same held for the liberty protected by due
process in the 14th Amendment.

If we accept Black's logic, does this mean parents don't have a right to send their children
to a private religious school? This was at issue in the 1925 case Pierce v. Society of Sisters,
where the state of Oregon required compulsory education in public school for children
between the ages of eight and 16. In Griswold, Justice Douglas drew on Pierce as an example
of private choice where the Court recognized under the 14th Amendment "the liberty of
parents and guardians to direct the upbringing and education of children."

The Court recognized the states' interest in educating and nurturing children — 
particularly in preparing them for citizenship — but insisted this could not preclude
private education and instruction. While Pierce dealt with religious education, the Court did
not confine its opinion to religious liberty, which could be protected by the First
Amendment. Indeed, it rested its opinion on Meyer v. Nebraska from 1923, in which the
Court rejected a law forbidding the teaching of German as an infringement on liberty. Do
these cases capture the constitutional understanding of liberty? Does the liberty the Court
recognized, which included a right to choose with regard to thought and education, extend
to contraception and other choices about procreation? What about choice with regard to
occupation?

The purpose of this discussion is not to jump from case to case with a spiraling set of
questions, but to show how beginning with a single case inevitably leads to questions that
necessarily draw us to other cases and controversies. Speaking to the particulars of cases,
we can begin to build more general understandings of liberty and equality as constitutional
principles. We are certain to disagree on many particulars. But our disagreements can then
be framed in terms of agreement on general constitutional principles, even while
disagreeing on their application.
Intimately related to questions of constitutional rights is our understanding of the different
branches of government and the division of power between states and nation. Justice
Black's rejection of judicial protection for unenumerated rights like "privacy," for example,
rested on his understanding of the proper scope of legislative and judicial power. He
believed that judges should defer to the democratically elected legislature unless the
Constitution specifically commanded otherwise by textually enumerating a right. In these
cases, Black argued, the people themselves had protected their rights against popular
majorities by enumerating them in a Bill of Rights. This move commanded the judiciary to
protect these specifically enumerated rights. But otherwise, allowing judges to second
guess the legislature based on claims to unenumerated rights would invite judicial
lawmaking based on the subjective political and moral preferences of the judges.

Black's position has not gone unchallenged. Other jurists have insisted it is precisely the job
of the judiciary to police the boundaries of legislative and executive power. This necessarily
includes protecting so-called unenumerated rights. Or, more precisely, jurists like Justice
Stephen Field insist that the constitutional text itself points to the protection of
unenumerated rights: specifically, the 14th Amendment's protection of the "privileges or
immunities" of citizenship, as well as its protection of liberty under the due-process clause.
Field argued that liberties like choice of occupation were protected by the Constitution
even if they were not specifically named. Others have pointed to the Ninth Amendment's
injunction that "the enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."

We can trace this argument back to Alexander Hamilton's insistence in Federalist No. 84
that the Constitution did not need a bill of rights because it granted only a limited amount
of power to the government. Hamilton argued that enumerating powers implied that
rights would not be enumerated, but would be protected by the enumeration of powers.
Like Hamilton, James Wilson — a leading member of the Constitutional Convention and
afterward a Supreme Court justice — insisted that, in a government derived from the
people, we should presume that all rights are retained. 

This line of argument suggests that, rather than place the burden on the individual to
justify a right, we properly place the burden on the government to justify its exercise of
power, to prove that it is genuinely connected to a legitimate public purpose. A variation of
this is taken from Chief Justice John Marshall's insistence in McCulloch v. Maryland (1819),
that if the government "in the execution of its powers, adopt[s] measures which are
prohibited by the constitution...under the pretext of executing its powers, pass[es] laws for
the accomplishment of objects not entrusted to the government; it would become the
painful duty of this tribunal...to say, that such an act was not the law of the land."
However we come at this issue, we must consider what sort of judicial scrutiny should
apply to acts of the legislature and executive. The legislature may have perfectly plausible
reasons for its actions. This raises profound questions for our understanding of our
political institutions and the nature of American constitutional democracy. As citizens we
need to consider whether we should accept the legislature at its word or whether courts
should apply a more exacting standard of judicial scrutiny to the laws and executive actions
before them. Should courts always defer to the democratic branches? Should they always
view legislation and executive action with a raised eyebrow, so to speak? Or should their
skepticism be selective?

This question comes up in almost every constitutional case. The Affordable Care Act was
put forward in 2010 as a regulation of interstate commerce, President Trump's travel ban
in 2017 as furthering national security, and numerous states' prohibition of same-sex
marriage early in this century as a regulation of procreation. Each one of these was a
plausible regulation on its face. And yet nearly everyone thinks that in at least one of these
cases, the judiciary should not simply defer to the political branches. So on what basis
should the judiciary act to overturn laws passed by the legislature? Only when it comes to
categorization on the basis of race and ethnicity? Only when a clearly enumerated
constitutional right is at issue? When it endangers the democratic process? When the
federal government may have overstepped its bounds and intruded on power reserved to
the states? In all of these cases?

Such questions necessarily implicate the Constitution's separation of powers. While the
phrase itself is not used in the Constitution, it is immediately obvious that the
Constitution's first three articles speak to the three branches of government. Article I
outlines the structure of the legislature, Article II the executive, and Article III the judiciary.
And Article IV speaks to relations between the nation and the states.

CONSTITUTIONAL KNOWLEDGE

By way of constitutional law, then, we will also come to understand the details of our
Constitution. In 1952, in the midst of the Korean War, President Harry Truman seized the
nation's steel mills to keep them running to supply munitions to the war effort. Truman
insisted he could do this as part of his power as Commander in Chief of the armed forces
during an active conflict. He also relied on "the executive Power" granted to him by Article
II of the Constitution. The president is also commanded to "take Care that the Laws be
faithfully executed," and he is made "Commander in Chief of the Army and Navy of the
United States." Does it follow that it was within Truman's power to seize steel mills in Ohio
in order to sustain the war in Korea?

In Youngstown Sheet and Tube Co. v. Sawyer, the Court found that President Truman had
overreached: Neither the executive-power nor the Commander in Chief clause authorized
the president to seize property in Ohio, far outside of the active war zone. Worse, Congress
had contemplated giving the president the power to intervene in labor disputes, which was
what threatened to halt steel production, and it had declined to do so. In other words,
Congress had seemingly considered giving the president this sort of power by statute and
had declined. While Congress had appropriated funds for the war, which was essential
under Article I of the Constitution, the Court declined to read this as approval of every
aspect of the war effort itself.

It may be surprising to learn that legislatures and presidents have been central to American
constitutional development. We tend to give an outsized role to the Supreme Court, as our
deeply divisive confirmation hearings have shown, but the Court is only one player in our
larger constitutional scheme. It was Lincoln who led the charge for Congress to secure the
13th Amendment, which abolished slavery — making the Union he had helped save
"worthy of the saving." Shortly after passage of the 14th Amendment, it was Congress that
sought to secure the rights of black Americans with the Civil Rights Act of 1875 against the
resurgence of "black codes," and it was the Supreme Court that restricted the scope of the
amendment. It was Congress, under the leadership of President Lyndon Johnson, that
passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965 as part of what has
been dubbed "the second reconstruction."

States, too, have played an important role. Much of our modern understanding of freedom
of speech comes from Southern states — Virginia and Kentucky under the respective
leadership of James Madison and Thomas Jefferson — criticizing the federal government's
passage of the Sedition Act of 1798. The act, according to Madison, "criminalized
differences of political opinion," which was resisted by states and throughout civil society.
In the run up to the Civil War, several states passed "liberty laws" to ensure that free blacks
were not mistakenly detained or captured as "slaves" under the Fugitive Slave Act of 1850.
Was this state resistance to federal law? Or was it an effort to ensure due process to
individuals lawfully within the state? Such issues came up in cases like Ableman v. Booth in
1859.

We continue to think about the proper balance between the states and the federal
government. But against the backdrop of our constitutional history, we get a more nuanced
understanding of federalism. This new understanding does not easily line up with current
partisan attachments and could help us appreciate federalism's virtues as well as its
shortcomings. 

TEACHING DISAGREEMENT

However much we know about the Constitution, we are going to disagree with one another,
often profoundly. That's the nature of constitutional government. It may even be that the
more we know about the Constitution, the more likely we are to disagree. Yet the
Constitution can help set the boundaries of such disagreement. And constitutional law
helps provide a model of disagreement. The opinions of the Court offer reasons for its
decisions, while concurring and dissenting opinions challenge the decisions of the Court.
Read together, they offer a powerful and extended dialogue on the Constitution — on the
very idea of America. At one point or another, it is almost always the case that students find
themselves persuaded by justices they may not generally agree with. Working through the
different constitutional cases reveals that they rarely track neat ideological divisions, and
often tend to break them down. We are also likely to find that, even when we agree with the
result in a particular case, we frequently disagree with the Court's reasoning and logic.

It's an exercise in citizenship to think through constitutional questions on our own. Indeed,
it forces us to think about how we should order and weigh different, and often competing,
constitutional values and principles. And as we think about how to apply the Constitution
to contemporary issues, it is striking just how much gray area there is. Thinking through
such issues requires us to exercise our reason and judgment, but also to acknowledge that
the answers we find are not so easily or neatly arrived at. Judgments other than are own
are certain to be reasonable, as there is obvious room for disagreement.

The 2013 voting-rights case, Shelby County v. Holder, offers a good recent example. Justice
Ginsburg argued that given the history of discriminatory voting procedures — particularly
against African-Americans in many Southern states — the Court ought to give wide latitude
to Congress in its efforts to protect minority voting rights. In doing so, she urged the Court
to defer to Congress's information gathering and past record in eliminating race-based
discrimination in voting, which had plagued the democratic process. The Court, in an
opinion by Chief Justice John Roberts, argued that on the basis of "principles of federalism,"
Congress should not require that certain states and counties get approval from the national
government before enacting any law related to voting. True, there was a history of racial
discrimination in these districts, but given that it was 50 years ago or more, Congress
should not treat states differently in this regard without recent evidence of discriminatory
voting practices on the part of particular states.

Chief Justice Roberts would defer to states and, in doing so, overturn sections of a
congressional statute. Roberts took seriously the gravity of his decision, noting the Court
should not overturn an act of Congress lightly. But it was unconstitutional, he argued, to
subject certain jurisdictions to rules from the federal government without new evidence
that these jurisdictions had engaged in racially discriminatory voting practices.

Like Justice Ginsburg's judgment, the Chief Justice's judgment was rooted in how he
understood voting rights, relations between the states and the national government, and
the Court's role in the constitutional scheme. Neither justice simply turned to the
constitutional text. Rather, based on different textual provisions, an examination of history,
and a weighing of constitutional principles, they arrived at their judgments of what the
Constitution, taken as a whole, required. Most crucial to their respective judgments was the
weight they gave particular constitutional principles. Justice Ginsburg prioritized voting in
light of a history of racial discrimination, while Chief Justice Roberts
prioritized federalism given the recent decline in racial discrimination in voting. We can
disagree with these respective constitutional judgments, yet even while disagreeing we can
understand that, as with many of our most pressing disagreements, they take place within
the confines of the American constitutional order.

A CALL TO CONSTITUTIONAL LAW

But how can we expect citizens to understand the Constitution and the logic behind the
American constitutional order when we spend so little time teaching it? How can we expect
citizens to be attached to constitutional democracy when we do not educate them to that
end? Given our neglect of history, it should come as no surprise that many citizens — 
including those who happen to hold high office — do not understand how freighted a term
like "blood and soil" is. Nor should it surprise us that a majority of Americans think that
non-citizens have no rights under the Constitution — even though the 14th Amendment
guarantees due process and equal protection to all persons.

Knowing this history, and specifically what the 14th Amendment entails, can help inform
and frame the boundaries of our contemporary disagreements. There are important
distinctions between citizens and non-citizens. And yet non-citizens are still entitled to due
process and equal protection. At the same time, treating citizens differently than non-
citizens is in many cases perfectly consistent with equal protection and due process. How
we draw these boundaries and differences will be the subject of intense political
disagreement. But it can be informed disagreement. Constitutional law can help tutor us
where we disagree, teaching us to think and reason about the most important matters that
both unite and divide us. What sort of political community did the Constitution seek to
promote? What sort of world do we want to inhabit? As Madison put it, "a people who
mean to be their own Governors, must arm themselves with the power which knowledge
gives."

Our politics is not going to take on the refined elements of a seminar discussion. Nor should
we expect it to. But we can do better than an ignorant barroom brawl, which is increasingly
where we are. Jonathan Rauch recently wrote in these pages that our political
disagreements may increasingly be about nothing other than tribal loyalties. It is no
wonder we are ignorant; we have not attended to educating for constitutional citizenship.
Our political institutions, including our political parties and other civic associations, have
effectively given up on their educative function and have thereby fueled tribal division.
Madison, again, puts it best: "A popular Government, without popular information, or the
means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." This is
the world we inhabit.

Of course, teaching civics can be done in deeply problematic ways. We could teach a
sanitized version of history that emphasizes only good things or ignores complexity. Yet
this is precisely why constitutional law, more than just ordinary civics, is a potent vehicle
for teaching civic knowledge: It puts constitutional issues in contested terms. Disagreement
is built in from the beginning. And it inevitably forces us to wrestle with some of America's
worst moments — there's no ducking Dred, Plessy, or Korematsu. And, in fact, studies have
shown that teaching the real version of history — with its conflicts — is more likely to
engage students. Certainly, it is more likely to cultivate the mindset and habits of
citizenship. But teaching the real version can also speak to progress and even triumph.
Discovering ourselves in our constitutional law holds out the promise of attaching us to the
constitutional project. And we should not shy away from the hardest questions. Does the
Constitution deserve our attachment? Is it worthy of devotion? Does it, as it promises in the
preamble, "establish justice"?

Constitutional law provides the sort of civic education Americans seem to so desperately
need, and it does so in a way that can help us recall what we share in common, even in our
tribal present.

George Thomas is the Wohlford Professor of American Political Institutions at Claremont

McKenna College, the author of The Founders and the Idea of a National University, and co-
author of American Constitutional Law: Essays, Cases, and Comparative Notes.