Journal Article•
The Popular Constitutional Canon
TL;DR: Ackerman et al. as mentioned in this paper pointed out the ways in which the lessons that we are teaching our schoolchildren undermine popular sovereignty, through mythologizing the Supreme Court, promoting “Founder worship,” and downplaying the constitutional achievements of successive generations.
Abstract: Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same time, other scholars have worked to bring the American people back into constitutional theory by studying the constitutional views of ordinary Americans and explaining the ways in which key social movements shape constitutional doctrine. These scholars, however, have largely ignored the pathways of constitutional socialization—the ways in which citizens learn about the Constitution. An important part of this neglected project is tending to the set of stock stories transmitted by key institutions to ordinary citizens—in other words, tending to the popular constitutional canon. In this Article, I turn to one site of constitutional socialization—American public schools. This visit to our Nation’s classrooms highlights the various ways in which the lessons that we are teaching our schoolchildren undermine popular sovereignty, through mythologizing the Supreme Court, promoting “Founder worship,” and downplaying the constitutional achievements of successive generations. In the end, if public opinion matters to constitutional doctrine and reform, as many scholars argue, then these sites of constitutional socialization are worth studying. * Alpheus Thomas Mason Prize Fellow, Princeton University; Climenko Fellow and Lecturer on Law, Harvard Law School, 2010–12; JD, Yale Law School, 2009; BA, Georgetown University, 2003. This Article arises from years of research, reflection, and conversation spanning a range of institutions and organizations, including Yale Law School, Harvard Law School, the Constitutional Accountability Center, the National Constitution Center, and Princeton University. For their suggestions, encouragement, and inspiration at various stages, I extend my deep thanks to Bruce Ackerman, Akhil Amar, Richard Albert, Andrew Bradt, Stella Burch Elias, Desmond Jagmohan, Michael Klarman, Stephen Macedo, Robert Post, Jeffrey Rosen, Reva Siegel, Steven Teles, Susannah Barton Tobin, and Keith Whittington.
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TL;DR: In particular, this paper argued that the Court's premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
Abstract: Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
10 citations
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TL;DR: In the case of NFIB v. Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement as mentioned in this paper.
Abstract: The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement.This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author.
4 citations
01 Jan 2013
TL;DR: Jadelyn Moniz Nakamura as mentioned in this paper is the Integrated Resources Manager/Archaeologist at Hawai'i Volcanoes National Park and has worked at the park for the past 13 years.
Abstract: Dr. Jadelyn Moniz Nakamura is the Integrated Resources Manager/Archaeologist at Hawai‘i Volcanoes National Park. Born and raised in Hilo, she has worked at the park for the past 13 years. She holds a B.A. in History and Anthropology (double major), an M.A. in Anthropology (with an emphasis in archaeology), and a PhD. in Archaeology, all from the University of Hawai‘i at Mānoa. She has conducted several historical research projects on the development of Hawai‘i Volcanoes National Park.
2 citations
References
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01 Aug 2007
TL;DR: This article found that a set of specific kinds of civic learning opportunities fosters notable improvements in students' commitments to civic participation, including discussing civic and political issues with one's parents, extracurricular activities other than sports, and living in a civically responsive neighborhood.
Abstract: This study of 4,057 students from 52 high schools in Chicago finds that a set of specific kinds of civic learning opportunities fosters notable improvements in students’ commitments to civic participation. The study controls for demographic factors, preexisting civic commitments, and academic test scores. Prior large-scale studies that found limited impact from school-based civic education often did not focus on the content and style of the curriculum and instruction. Discussing civic and political issues with one’s parents, extracurricular activities other than sports, and living in a civically responsive neighborhood also appear to meaningfully support this goal. Other school characteristics appear less influential.
442 citations
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05 Jul 2017
TL;DR: The Supreme Court of the United States is also a political institution, an institution that is to say, for arriving at decisions on controversial questions of national policy, and it is this role that gives rise to the problem of the Court's existence in a political system ordinarily held to be democratic.
Abstract: Considered as a political system, democracy is a set of basic procedures for arriving at decisions. To Consider the Supreme Court of the United States Strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy. Court must choose among controversial alternatives of public policy by appealing to at least some criteria of acceptability on questions of fact and value that cannot be found in or deduced from precedent, statute, and Constitution. It is in this sense that the Court is a national policy-maker, and it is this role that gives rise to the problem of the Court's existence in a political system ordinarily held to be democratic. Justices are typically men who, prior to appointment, have engaged in public life and have committed themselves publicly on the great questions of the day.
246 citations
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TL;DR: In this paper, an "overcoming obstructions" account of why judicial review might be supported by existing power holders is presented. But it is not clear why current officeholders might tolerate an activist judiciary.
Abstract: The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.
228 citations
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TL;DR: This paper examined the Student Voices curriculum, implemented in 22 Philadelphia high schools, to assess program activities that mediate gains in outcomes linked to future political participation (following of politics, political knowledge, and political efficacy).
Abstract: School‐based civic education is increasingly recognized as an effective means for increasing political awareness and participation in American youth. This study examines the Student Voices curriculum, implemented in 22 Philadelphia high schools, to assess program activities that mediate gains in outcomes linked to future political participation (following of politics, political knowledge, and political efficacy). The results indicate that class deliberative discussions, community projects, and informational use of the Internet produce favorable outcomes that build over the course of two semesters. Effects were comparable for both white and nonwhite students.
127 citations
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TL;DR: Gitelson et al. as mentioned in this paper pointed out the need to address contemporary, "deep concerns about the viability of democracy in America," concerns rooted in the perceived "decline in civic engagement, political efficacy, and in the capacity of citizens to organize themselves."
Abstract: Alan R. Gitelson is professor of political science at Loyola University, Chicago. His most recentpublications include American Government, 7th Edition Iwith Robert L Dudley and Melvin DubnickJ, andAmerican Elections: The Rules Matter {with Robert L. DudleyJ. He serves as a member of the American PoNitical Science Association Standing Commiffee on Education and Professional Development. He can be reached at agitels@luc.edu. In one of her first acts as president of the American Political Science Association in 1996, Elinor Ostrom created the "Task Force on Civic Education for the Next Century." Ostrom pointed to the need to address contemporary, "deep concerns about the viability of democracy in America. . .," concerns rooted in the perceived "decline in civic engagement, political efficacy, and in the capacity of citizens to organize themselves...." Ostrom went on to argue for a number of remedies to deal with the need for greater civic education and civic engagement in the United States (1996, 755-58). The discussion that Ostrom opened, led to the establishment, in 2002, of an APSA standing committee on Civic Education and Engagement. Of course, the roots of this discussion are far deeper than recent APSA initiatives. Theorizing on the conditions necessary to sustain civic responsibility in a political regime can be traced back to ancient political theory. Similarly, the role, status, and evolution of civic education and engagement, particularly among American youth, preoccupied much of the work of Progressives (e.g., Dewey 1900, 1916). Indeed, many of the Progressive reformers devoted considerable attention to the link between education and citizenship. Post World War II political scientists reentered this discussion with the creation of a distinct field known as political socialization. 1967; Hess and Torney 1967) and their sense of nationality (Davies 1968) proliferated in the 1960s and 1970s. So prodigious were students of political socialization that by the end of the 1960s Greenstein declared, "Political socialization is a growth stock" (1970, 969). Political socialization research may have been a growth stock in 1970 but by 1985 Timothy Cook (1985) was pointing out that the bull market had turned decidedly bearish. The number of publications in political socialization between 1977 and 1982 markedly declined and more importantly the number of articles dealing with those younger than high school seniors all but disappeared from political science journals. As Cook (1985, 1080) noted, "childhood . . . disappeared in political science." This rapid decline is often attributed to methodological quarrels centering on the use of survey instruments. Many researchers began to doubt the validity of administering survey instruments to children. Indeed, to some, the responses gleamed from surveys were simply nonattitudes, susceptible to instability and produced by the children's willingness to provide socially correct answers, further contaminated by response set bias (Kolson and Green 1970; Connel 1972; Vaillancourt 1973). But methodological qualms alone cannot explain the fall from favor that political socialization research experienced. Although survey research was the dominant methodology, inventive researchers found other ways to address the questions. Greenstein (1975), for instance, used semi-projective tests and Merelman (1971) used hypothetical dilemmas. For Cook, the decline of political socialization research in the late 1970s is attributable to the failure to take into account psychological models of development. The field's focus on the attitudes of children lead researchers to ignore, sometimes unintentionally, other times quite intentionally (see Greenstein 1970), the fundamental questions of cognition.
56 citations