WHOSE CONSTITUTION IS IT ANYWAY?
By MICHAEL C. DORF
|Wednesday, May. 29, 2002
"From each according to his ability, to each according to his needs" - one of Karl Marx's most famous maxims - describes what Marx believed to be the proper means for distributing resources in a communist society. With the fall of communism in eastern and central Europe, and the increasingly market-oriented policies of nominally communist countries like Vietnam and China, one might have thought Marx's adage a quaint relic.
Astoundingly, however, a new survey of a representative sample of over a thousand Americans conducted by Columbia Law School shows that Marx's slogan is alive and well--right here in the United States. The survey found that sixty-nine percent of respondents either thought that the United States Constitution contained Marx's maxim, or did not know whether or not it did.
The survey result cannot be dismissed as anomalous, for it parallels the outcome of a survey conducted by the Hearst Corporation fifteen years ago.
These results, taken together, are troubling for a constitutional democracy in which popular consent underwrites the government's legitimacy. How can Americans be said to tacitly ratify the Constitution over time when so many of them have a deeply erroneous idea of what it contains?
What the Latest Columbia Law Survey Reveals: Marx as Framer?
The Columbia Law Survey asked Americans five yes-no questions designed to test their knowledge about the American Constitution. For each question, respondents were also given the option of answering "don't know." In response to the question whether the Constitution contains the Marxist maxim, 35 percent said yes, 31 percent said no, and 34 percent said they did not know the answer.
That pattern indicates that the number of people who actually knew the right answer is substantially less than 31 percent. After all, more than half of the people who believed they knew the right answer--the 35 percent who erroneously answered yes--were wrong.
We can infer that some substantial fraction of the people who did not answer "don't know" were actually guessing. It is therefore safe to assume that some portion of the people who correctly answered "no" were also guessing, but they happened to guess right.
In short, the fraction of survey respondents who really knew the right answer, and weren't just lucky guessers, is probably less than a quarter.
The News Isn't All Bleak: Other Results Show Greater Constitutional Knowledge
The survey respondents did better in answering three other questions. When read the first sentence of the Fourteenth Amendment, an impressive 83 percent stated that it is part of the Constitution.
Moreover, 64 percent of respondents correctly answered the question whether Supreme Court Justices serve for renewable twelve-year terms. (They do not; they serve for life.)
And sixty percent correctly disagreed with the statement that "In time of war or other declared national emergency, the President may suspend the Constitution's Bill of Rights." (Only the privilege of the writ of habeas corpus, not the entire Bill of Rights, may be suspended, and only by Congressional action, not by the President acting alone.)
Even if some of the people who answered this question correctly were only guessing, the fact that they guessed that the Constitution does not grant completely unchecked, sweeping power in times of crisis demonstrates important support for the rule of law.
How Deep is the Public's Knowledge About Our Constitution?
Nonetheless, the Columbia Law Survey revealed substantial ignorance about fundamental issues. In addition to confusion about whether the Constitution contains a Marxist manifesto, Americans showed little understanding of how constitutional adjudication works.
Respondents were read the following statement and asked whether it is true or false: "If the Supreme Court were to overrule Roe vs. Wade, abortion would be illegal throughout the United States." Fewer than a third correctly answered "false."
Roe v. Wade established that there is a constitutional right to abortion. If the case were overruled, abortion could be made illegal in those states that wished to prohibit it - but it would remain legal in other, more liberal states.
Accordingly, overruling Roe would simply mean that the Constitution does not prohibit a category of laws--anti-abortion laws. It would not mean that the Constitution would require that such laws be passed.
The distinction between what is constitutionally permitted and what is constitutionally required might be thought a rather technical point. However, it is at the very heart of the constitutional debate about abortion, and that debate is hardly an obscure one.
Indeed, to judge by the rhetoric of political campaigns, one might think that abortion is the only issue for which our courts have responsibility. Pro-choice and pro-life politicians alike hammer away at the significance of judicial appointments for the abortion issue. And yet it turns out that two-thirds of Americans do not fully understand what is at stake.
Ignorance is Understandable But Still Troubling
In lamenting public ignorance of our constitutional system, I do not mean to play the scold. People are busy with work and family obligations, and given the complexity of the world, it is impossible for even the most conscientious citizen to be fully informed about everything that affects his or her life. After all, who among us would not provide erroneous answers to some pretty basic questions about science, history, or economics, to name just a few subjects about which the Columbia Law survey did not ask?
Yet even as ignorance about the Constitution may be completely understandable, it remains cause for concern. To see why, it may help to go back to basics.
The Framers' Understanding of the Popular Role in Constitutional Interpretation
The fundamental challenge of government is one of balance. On the one hand, the state needs sufficient tools to meet the great challenges that can only be solved by collective action: national defense, combating private violence, safeguarding public resources, and so forth. On the other hand, a government that is powerful enough to do its job properly can itself become a threat to the very people it is meant to protect. Constitutions attempt to resolve this tension by both empowering and constraining government.
How so? As James Madison wrote in the Federalist Papers, "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." In other words, the first and most important check on abuses is regular elections. However, Madison knew that even democratically elected officials can become despotic without the sort of "auxiliary precautions" one finds in a constitution that limits government.
These are not mere abstract propositions. They are as pressing today as they were when Madison set them down in the 18th Century. What is the proper role for government in combating terrorism and protecting the natural environment? To what extent should the government be limited in pursuing these aims by, respectively, rights of privacy and property? In our system of government, such questions raise urgent political as well as constitutional issues.
It is tempting to think that responsibility for resolving such questions can be neatly divided between elected officials--who answer their "political" aspects--and the courts--which address matters of constitutional interpretation.
Tempting, perhaps, but mistaken. Although the framers of our Constitution anticipated that the courts would invalidate unconstitutional laws, they also expected that "primary" responsibility for setting constitutional limits would belong to elected representatives and thus, ultimately, to the people.
The Continuing Relevance of Public Opinion: Why It Matters to the Law
Justices of the Supreme Court sometimes speak as though they alone are responsible for interpreting the Constitution. But in truth the public plays a substantial role.
For one thing, there are some constitutional issues--what lawyers call "non-justiciable" questions--that courts simply do not touch. A recently prominent example is whether the offenses for which President Clinton was impeached constituted "high crimes and misdemeanors." That is a constitutional issue as to which Congress was the sole authority.
Most constitutional questions are capable of resolution by courts. Yet that does not mean that the public plays no role in deciding such questions.
For one thing, numerous constitutional tests expressly incorporate public understandings. Is a search "unreasonable" within the meaning of the Fourth Amendment? Do sexual materials offend "community standards," so that they may be banned despite the First Amendment? Does a given form of punishment violate society's "evolving standards of decency," so that it violates the Eighth Amendment? These are all constitutional questions that can only be answered by reference to public views.
In addition, public attitudes shape constitutional law through the judicial appointments process. Political battles in the Senate over Supreme Court and other judicial nominations can take the form of referenda on methods of constitutional interpretation.
Moreover, in cases of contested nominees Senators pay close attention to the views of their constituents. For this and other reasons, it would therefore seem essential that those constituents have some fairly clear sense of what the Constitution contains.
"A Republic, If You Can Keep It"
At the conclusion of the Constitutional Convention in 1787, Benjamin Franklin was reportedly asked what form of government had emerged, to which he replied, "A republic, if you can keep it." Two hundred and fifteen years later, though we face serious national security and other dangers, we are unlikely to lose our republican form of government.
But that is no reason to take what the Constitution calls "the blessings of liberty" for granted. Thus, the results of the latest Columbia Law survey should be a call to action to those of us--including journalists, politicians, and especially teachers--responsible for informing the public about the law.
The late Chief Justice Warren Burger understood this last point very well. When he oversaw the bicentennial celebration of the Constitution in the late 1980s, Burger distributed copies of the Constitution to schoolchildren throughout the nation. Now that those children have grown up, they appear to have misplaced their Constitutions. So, to make my own small contribution to public knowledge about the American Constitution, I'm providing, courtesy of FindLaw, an electronic replacement copy for free.