Balkinization: Civic Education in Unhappy Times

Civic Education in Unhappy Times

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Civic Education, convened as part of LevinsonFest 2022.

First of all, as always, my thanks, however belated, in this instance, to those who organized and participated in the “Levinsonfest” project, particularly Richard Albert and Ashley Moran, and to the indispensable Trish Mair (who began this past year as Trish Do). This particular iteration of the project, dealing with civic education, is especially meaningful. The topic of great interest to me and my wife Cynthia—and, one might add, to my daughter Meira, the author of a seminal book, No Citizen Left Behind, on the topic, as well my other daughter Rachel, an attorney at the Brennan Institute of Justice concerned with preserving liberal constitutionalism in America as well as the mother of two young children (in Washington) who actually experience the realities of “civic education.” But this is also the occasion for the publication of a posthumous essay by my friend Lief Carter. Lief was a truly remarkable person and scholar, the author, among of works, of an introduction to how to think about law that inevitably raises many important questions. In any event, I am especially pleased that Balkinization is the venue for the final reflections of an audacious thinker, as well as the contributions of two important and very much alive students of the topic, Martha Minow and Elizabeth Beaumont.

I want to begin with Elizabeth’s essay, which raises for me an especially vital question. Her basic argument is that we should interpret the Constitution as mandating civic education. This means, among other things, that students would be entitled to sue for rectification of the obvious fact that civic education is in dire straits in the United States today. I will, probably later this year, publish an essay, “Civic Education in Critical Times,” as part of a symposium on civic education; my central focus is the paradox generated by expecting any state engaging in civic education to foster a genuinely critical perspective on the part of the students subjected to any given courses. The state has an obvious interest in using such courses as mechanisms of inculcating loyalty and devotion to the status quo.

To be sure, one might envision courses spending some time on those agents of change in American life, such as (certain) denizens of the Civil Rights Movement such as Martin Luther King, while at the same time realizing that their contributions will inevitably be sanitized to remove any genuinely uncomfortable lessons that the young might pick up. It is, of course, one thing to valorize King as the apostle of non-violent change; it is quite another to suggest, for example, that John Brown, let alone Nat Turner, be studied as a possible role model. Frederick Douglass has moved into the American Pantheon in recent years, but one can be confident that most states would be reluctant to assign his quite remarkable panegyrics to Brown, a personal friend, both after his execution for his audacious assault on Harper’s Ferry and then, perhaps even more notably, toward the end of Douglass’s own life.

Several recent members of the Supreme Court, including Sandra Day O’Connor, Stephen Breyer, and Sonya Sotomayor have adopted civic education as a personal cause. One should certainly not disdain their interest; yet it should be obvious that they have no particular interest in encouraging students to address whether the Supreme Court as an institution has generally been a truly productive institution for those interested in a United States genuinely devoted to realizing the goals laid out in the Preamble to the Constitution, including, most notably, “establishing Justice.” Nor do their interests appear to focus on what has become most important to me personally, which is the undemocratic nature of the structures imposed on the United States by the 1787 Constitution, which has been barely amended since then. The 17^th Amendment did, to be sure, place the power of selection of senators in the hands of state electorates instead of state legislatures, but, to put it mildly, that did nothing to eliminate the extent to which the Senate is both theoretically illegitimate and, as a practical matter, often egregious hostile to achieving progressive legislation. The House of Representatives obviously presents its own problems, largely revolving around gerrymandering, though I think that the more important problem involves the consequences of the congressional decision, back in 1842, to require that all representatives be elected in single-member districts. In any event, as I have been writing now for almost two decades, students need to spend much more time learning—and arguing—about these, and other, structural features than, for example, focusing on the kinds of rights-oriented cases that get to the Supreme Court for decision. It is important that students confront some of the complexities of the issues that do constitute “constitutional law” from the perspective of the general citizens, but it is certainly not sufficient to provide the kind of “civic education” that I suspect that Beaumont and I would both prefer.

What I have called a “tutelary state”—a state devoted to teaching its citizenry, especially the young, a “proper” understanding of the polity—will rarely try to undercut its own legitimacy. Instead, whether observed in public monuments or the curriculum established for the young to absorb, it will always try to reinforce its own claims to rule and, of course, to be obeyed. However, if one finds almost literally thoughtless endorsement of the institutional status quo, without kind of “critical thinking” that directly challenges this “tutelary” claim, it will become ever less likely that government will effectively meet the critical problems facing us. This is a paradox that must be faced, even if there is no easy, or even seemingly plausible, resolution. Joseph Schumpeter famously wrote of the “creative destruction” necessary to achieve important socio-economic breakthroughs. Perhaps the same is necessary with regard to sclerotic governments and their institutional structures, but how, exactly, is such a lesson to be taught when the tutelary institutions are in the hands of the state and, less abstractly, of the individuals who benefit from the institutional status quo? I have often quoted what I call Roche’s dictum, named after mid-20^th century political scientist John P. Roche: “Power corrupts, and the prospect of losing power corrupts absolutely.” Most civic education is intended to reinforce the claims of those with institutional power; why should one expect them to look kindly on radical critiques that, if accepted, would sweep them away, perhaps to what Trotsky so memorably called “the dustbin of history”?

I have no good answer to this dilemma. As is true generally of my work, I’m more adept, perhaps like most law students, at “spotting” issues than at providing satisfactory answers to resolve them. But I would offer one important amendment, I hope regarded as friendly, to Beaumont’s important essay, which is that one would have to make sure that those designing programs of civic education would in some genuine sense be (relatively) independent of those occupying transitory political power. Just as we are rightly concerned about maintaining the “independence” of the judiciary or the Federal Reserve Board, we must also be concerned, especially as Ron DeSantis becomes the leading exemplar of a nakedly political attempt to capture public education for the most ideological of partisan purposes, with maintaining the independence of those charged with educating the young. However, yet another essay that I will presumably be publishing later this year addresses the problematics of often thoughtless endorsement of “judicial independence,” and there are certainly people across the ideological spectrum who have raised questions about the degree to which the Fed should be truly “independent.” Similarly, we must always be trying to figure out the Goldilocks point, with regard to public education, between independence and accountability of those charged with teaching the young.

Martha Minow, in her own valuable contribution, notes that “42 states within this nation are considering or have adopted restrictions how teachers can teach about American history, racial justice and injustice. And efforts to secure a federal constitutional right to education, including civic education, have been rebuffed.” She makes the all-important point that decisions about education in general—and civic education in particular—“cannot be left entirely to parents” who might well, bluntly speaking, be committed to values that are adverse to achieving the kind of pluralistic, liberal democracy that “we” presumably endorse. “Illiberalism” is on the rise across the world, and it would be a mistake to ignore the extent to which a particular form of populist nationalism, whether in Poland, Hungary, Israel, or, indeed, the United States, has wide support from many parents who believe that a more genuinely inclusive and truly pluralistic polity threatens their own senses of political identity.

Education, by definition, is the way that cultures and polities maintain themselves across time. Children must be socialized in given ways of looking at the world and, of course, there is nothing “neutral” about almost all specific perspectives related to politics (or to law). This is the reason that a fundamental fault line in contemporary American politics involves education and who controls what children will be exposed to. As she eloquently writes,

Nothing in documents and institutions of democracy and human rights guarantee the preconditions for their success—notably, respect for the dignity and rights of others. Democracies presuppose and depend upon tolerance, humility, management of fears and anger, curiosity and openness to others, empathy and practice finding commonalities despite differences, and interest in evidence and willingness to consider views other than one’s own. They work only if losers accept losing. And democracies also work best when people can imagine a common good and take responsibility even when we do not see ourselves as causes of the problems around us.

Perhaps one way of describing a polarized society is precisely the unwillingness of losers to be “good sports,” accept the results, and await the next election. We are, of course, especially aware of the unwillingness of Donald J. Trump and many of his supporters to accept the results of the 2020 election. But we should acknowledge that many of those (and us) who write about the fundamental crisis facing the maintenance of liberal democracy at home and abroad—think of Levitsky’s and Ziblatt’s How Democracies Die—can scarcely adopt the posture of good sports when faced with the possibility of a return to power by Trump in 2024.

Martha endorses, as I do, the necessity of moving away from a callow “interest group” view of politics, which can ultimately disintegrate into a modern version of an Hobbesian war of all against all, to one that takes seriously the notion that we can be united by some vision of a “common interest” or a “common good.” These terms, for many, evoke the writings of Michael Sandel, a leading critic particularly of the Rawlsian liberalism that has dominated much of the academy since the 1970s, or her colleague Adrian Vermeule, who is considerably more antagonistic to “liberal democracy” and is widely thought to endorse a return to neo-medieval Catholic integralism. What unites all such critics, though, is an agreement that a complacent embrace of a strictly proceduralist view of “the rule of law” (especially if that is translated to mean “rule by the Supreme Court”) is no longer satisfying. Yet perhaps the central premise of pluralism is precisely the fact that there is no unified “comprehensive view,” in Rawls’s terminology, or the kind of “consensus” beloved by many writers on American politics in the 1950s. We are constituted by many different communities that can and do differ substantially on basic questions involving what would count as “establishing Justice” or “securing the Blessings of Liberty.” Finding a truly common language of political discourse appears more and more difficult.

So this brings me to the contribution of the now sadly departed Lief Carter. He recognizes that the most important subject—or should the word be “target”?—of discussions of civic education is youngsters between kindergarten and the twelfth grade of high school. He is not primarily concerned, for example, with how college curricula—or even more, the legal academy—might be reformed to engage in better civic education. For the students he is focused on, “teaching civics,” he argues, “should be anchored specifically in teaching the rule of law.” After all, thanks to the 26^th Amendment, even some high-school seniors are empowered to vote, and almost all high-school graduates are, at least formally, eligible to take their part in helping to determine the future of our country. Furthermore, even now, most graduates will not go to college at all, let alone the kinds of liberal arts colleges or universities where one might imagine sophisticated courses appropriate to a full-scale “civic education.”

Lief laconically notes that most students might well be averse to immersing themselves in “civic education” courses designed for them by others. There are just too many things competing for their scarce time and energy to assure that they will not slough off the materials presented them. And, alas, simply being told, as Beaumont, Minow, and I would all agree, that the future of our society—and perhaps the world—depends on the creation of a next generation that will want to veer away from the dangers presented by our present polity will probably not suffice to take attention away from other concerns of the young, whether hormonal or well-justified worries about their economic futures or even basic safety when subjecting themselves to a public space that includes the widespread presence of gun owners wishing to take advantage of their right, in more than 40 states, to engage in the “open carry” of firearms, purchased, of course, as the result of overly lax laws in no way required by any sensible interpretation of the Second Amendment.

Lief suggested that students be enticed into civic education in effect by emphasizing the degree to which politics is a game. “Academic analysis—formal theorizing, data collecting, and statistical analysis-- will not directly reach this audience. Instead, civic lessons should tell stories about fairness and unfairness in the rule-driven disciplinary situations and games that young people all experience.” As Lin-Manuel Miranda has taught all of us, “who tells your story” (and how it is told) is central to learning. And, not surprisingly, much of the contemporary debate, especially over Critical Race Theory as a myth and symbol, is precisely whose stories the young should learn. (I return to the difference between Martin Luther King and John Brown or Nat Turner.)

Lief offered a wonderfully capacious understanding of “politics.” Whereas I am perhaps overly consumed by the desirability of getting youngsters to think more about the concrete realities of the Senate or the presidential (or gubernatorial) veto power, Lief wants to start them off by thinking of any and all “processes by which people try to get other people to do things those other people do not, at least initially, want to do.” The earliest examples of politics, he argued, occur within the family, over such issues as bedtimes and brushing one’s teeth. Young children, for whatever reason, have instinctual notions of “fairness.” If the older sibling gets a larger piece of cake, the younger is likely to initiate a basic conversation about the meaning of “equality” and justice. And so on. As academics know, “cake dividing” is often used as an example in creating institutions that will generate good losers. Consider the maxim that those dividing cakes should have the last choice as to which piece they take. That, it is often argued, will assure that the cutter will make sure to achieve as equally-sized pieces as is practically possible. Voila! The first lesson in “constitutional design”! There is nothing trivial about such an argument, or example. Elemental pedagogy begins with speaking to students in terms they can understand and respond to. I am certain that I have not lived up to this, and that that is unfortunate.

Lief, characteristically, raises a crucial question, whether for cake-cutting or any other manifestation of “politics.” Is one thinking from an “individualistic” perspective—what’s in it for me?—or, instead, from a more communitarian one? Before one applauds the shift from egotism to communitarianism, one ought to recognize that one form of communitarianism is to join a “team” and to devote oneself to maximizing your team’s ability to “win” all political contexts. That is obviously far from the “common good” valorized by Minow. Lief, a strong fan of the University of Georgia Bulldogs, offers a story of the conflict between loyalty to one’s team, which should of course win all contests that it enters, and loyalty instead to some set of overarching “rules of the game,” which will have the unfortunate consequence that one’s team sometimes loses even to a hated rival, such as Crimson Tide of Alabama.

Lief immediately recognizes that “[s]ome of you in the audience might object that football is just a game, that politics is ‘real’ but games are not. But we have designed our political system, and indeed our economic and legal systems as well, to be competitive games.” Students might well be invited to discuss the differences between football and “real politics,” but he was surely onto something in the suggestion that there is much to be gained by integrating sports into our “civic education.” Indeed, one might note that Mitch Berman and Richard Friedman last year published a fascinating casebook on the jurisprudential issues raised by sports.

Perhaps surprisingly, Lief seemingly endorsed “Steven Pinker’s basic thesis that humans increasingly arrange their lives via trade and love and less via brutal power struggles.” The reason is the triumph of “the rule of law,” which means that at “the heart of civic education” should be teaching (and enabling students to see) “how political and economic life has adopted the features of a good competitive game.” How I wish that I could have another conversation with my departed friend and challenge some of the assumptions he makes about the “rule of law.” Two comments stand out: “We fight to preserve the rule of law itself. Without rules applied equally to both sides and enforced impartially by unbiased referees, both athletic and political competitions fall apart. Down that path lies the mayhem we saw on January 6.” (emphasis added). And consider his premise that there must be “Unquestioned authority of referees/judges. For the same reason that the rules should be as precise as possible, players must accept the finality of the decisions of referees or the game will collapse.“ Also telling is his comment that “‘Utopian’ communities attempted by people who forsake politics and depend only on voluntary cooperation routinely collapse.”

He seemed to express his own doubts that observers could genuinely view the contemporary Supreme Court as a group of truly “unbiased referees” in whom we should invest “unquestioned authority.” But, of course, one can wonder if that was ever true, not only within the United States, but also within all legal systems outside of utopia. I began my remarks by noting my personal interest in what might be called “negative” (or simply “critical”) civic education. I could easily imagine teaching Lief’s evocation of the rule of law as something to which we might well aspire. It captures wonderfully what it might feel like to live in a complex polity that will inevitably generate both winners and losers, but where the latter are good sports in part because they can expect to win the “share of games.” In his own way, he seems to offer a contemporary version of Lon Fuller’s “internal morality” of legal systems that we would gladly accept.

But what if one believes, as I suspect that most of “us” do, that the game is rigged? In my own case, I believe that the rigging began in 1787 and has not significantly abated since then. As I have written on numerous occasions, I believe that Bernie Sanders disserved his campaign—and the country—by failing to educate especially his young followers on the structural barriers to the adoption of any seriously radical, let alone “revolutionary,” policies at the national level of American politics. Such aspirations may occasionally make sense in some of the American states, where it is far more likely that “elections will have consequences” in the sense of enabling a mobilized party to sweep the table of elected offices and pass their programs. But the 1787 Constitution was designed precisely to prevent that, and it has proved all too successful over our almost 240-year history. Even a civil war that killed 750,000 people was not enough to generate a true “second founding” that would adequately supplant the problems revealed by the first founding.” So for me the challenge of contemporary civic education is deciding on what lessons to teach the young, and how to teach them in such ways that are both reasonably “accurate” and do not function primarily to discourage and depress them about taking their place as active citizens.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.

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