Civic Education and Faultlines of Constitutional Democracy

Guest Blogger

This post was prepared for a roundtable on Civic Education, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Elizabeth Beaumont

In honor of Sandy Levinson and Levinsonfest, and for Cynthia Levinson, Meira Levinson, and all others dedicated to educating for an inclusive and just constitutional democracy^[1] 

Across much of the world, there is deepening fear of crises facing constitutional democracy.^[2] The United States has experienced its own challenges and threats: organized attacks on elections and voting rights; surges in ethno-nationalism and racism; deepening economic inequality; misinformation, divisive polarization, widespread distrust of political and social institutions, and an armed insurrection aimed at preventing constitutional transfer of presidential power following a free and fair election. These crises have been stark reminders that constitutional democracy is not self-creating or self-improving, and that constitutional texts, structures, and institutions alone cannot generate a robust constitutional democracy. There is also need for a ‘civic constitution’ and civic culture with engaged and informed democratic citizens: citizens who respect each other as free and equal, and who have the knowledge, capacities, and commitments needed to participate in debating, guiding, and improving constitutional democracy. But no one comes into the world with these abilities. They must be developed and supported. In the U.S. and many other countries, however, civic education remains inadequate, uneven, and sometimes entirely missing. Recent political threats create new impetus for the U.S. and other constitutional democracies to recognize a right to civic education – universal access to high quality civic learning in school – as a right of democratic citizenship, a necessity for legitimate rule of law, and an institutional foundation for a robust and inclusive constitutional democracy.^[3]

 This essay urges that Sanford Levinson’s critiques of undemocratic structures of the U.S. Constitution should be extended to recognize that the failure to recognize a right to civic education contributes to dangerous “fault lines” in constitutional democracy.^[4] After noting some possibilities and challenges for recognizing civic education as a right or responsibility in the U.S., I suggest how the lack of civic education can generate or exacerbate undemocratic fissures in constitutional democracy. In conclusion, I consider several strands of Levinson’s work that can help democratic citizens think critically and creatively about how to participate in and improve constitutional democracy – and perhaps amend or transform it.

I. The Paradox of Civic Education in the U.S.: Fundamental to Democratic Citizenship and Constitutional Democracy, yet Variable, Unequal, and Sometimes Missing 

While civic education is often discussed as a necessity for democratic citizenship and an underpinning of a healthy constitutional democracy in the U.S., it has not yet been officially recognized as a national right or responsibility. Instead, civic education is largely optional and highly susceptible to shifting political tides and priorities at the federal, state, and local levels. And even though there is growing research on how civic education can promote democratic engagement in students from many backgrounds, there has been a pattern of uneven and declining civic education in the U.S. For the past two decades or more, some students have been receiving little or no civic education even as the country has faced significant challenges of proliferating misinformation, deepening polarization and inequality, and increased political violence and hate crimes. Inadequate civic education leaves citizens’ level of knowledge and preparation in nearly all aspects of constitutional democracy variable, unequal, often inadequate, and sometimes missing. And this leaves constitutional democracy in the United States with knowledge deficits and democratic deficits in its operation and legitimation – and more vulnerable to anti-democratic and illiberal forces, autocratic threats, and political violence. 

One challenge is that thus far the U.S. Constitution has not been construed as requiring the provision of any education. We can imagine an alternate history in which education, and civic education, would have been explicitly discussed in the Constitution’s text (such as the Preamble), or that it could have been interpreted as a fundamental right by the U.S. Supreme Court, or that it could have been recognized as a national obligation by Congress. There have been important opportunities to do so, and partial steps in these directions. Indeed, landmark US Supreme Court cases, speeches and efforts by various US Supreme Court Justices, work by political leaders from both parties, and multiple social movements and civic groups have laid the groundwork for a right to civic education by identifying it as fundamental for American democracy. 

Recognition of the importance of civic education is not new, but can be traced back to the initial founding period of the US Constitution, when prominent leaders expressed views that education had, and should have, a fundamentally civic function—to prepare people for citizenship, and to protect the republic from destruction. Belief in the need for education for citizenship in constitutional democracy further expanded through an array of American civic thought and leadership, from John Dewey to Anna Julia Cooper and Carter G. Woodson.^[5] And assertions of an inextricable relation between education and capacity for equal democratic citizenship have been woven into political projects of multiple social and political movements as they have claimed their own equal citizenship and pushed for a fuller constitutional democracy: from the Freed person’s movements to create schools after the Civil War, to the Black Civil Rights Movement and Freedom Schools, and the Chicano Movement’s activism for education in the 1960s. 

The centrality of education for citizenship has also been articulated in one of the most pivotal Supreme Court decisions regarding constitutional democracy in the U.S. In Brown v. Board of Education (347 U.S. 483, 1954), the most famous discussion of constitutional principles regarding equal citizenship, Chief Justice Earl Warren identified education as “perhaps the most important function of state and local governments,” “the very foundation of good citizenship” and “a right which must be made available to all on equal terms. This seemed to give recognition of education as the ‘foundation of good citizenship’ and a basis of civic equality a quasi-constitutional status, and this principle has since been repeated verbatim in at least 154 cases in state courts, federal courts, and by the U.S. Supreme Court.^[6] One influential re-articulation came in Wisconsin v. Yoder (1972), when Chief Justice Warren Burger acknowledged that education is “necessary to prepare citizens to participate effectively and intelligently in our open political system.” 

Yet official interpretation of the U.S. Constitution does not recognize a fundamental right to education, which leaves all types of learning, including civic education, without this support (San Antonio ISD v. Rodriguez 1973).^[7] The Constitution’s silence regarding education, and lack of a national constitutional right to education, makes the U.S. exceptional in a troubling way, setting it apart from most modern constitutional democracies.^[8] And while it is critical that nearly all US state constitutions include some provision or right to education, the language and implementation of these state rights varies considerably, and thus far none of the state constitutions have been judicially interpreted or politically construed to include a right to civic education. 

There is potential for this to change. Through the leadership of scholar-lawyer Michael Rebell, there has been an impressive recent effort to recognize a right to civic education under the US Constitution that would include: 

a meaningful opportunity to obtain a basic education necessary to prepare them to be capable voters and jurors, to exercise effectively their right of free speech and other constitutional rights, to participate effectively and intelligently in our open political system and to function productively as civic participants.^[9]

The Cook (A.C.) v. McKee 2022 case did impressive work to push these arguments forward in law and in public debate, but lost in the First Circuit Court of Appeals.^[10] This leaves civic education still “unconstitutionalized” throughout the U.S. The petitioners—a group of high school students in Rhode Island, which requires no high school civics—opted for a partial victory by negotiating a settlement with the state that included creation of a “Civic Readiness Task Force” rather than petitioning to appeal the decision to the Supreme Court (whose majority does not seem receptive to recognizing any right to education). 

The Cook case will become a new playbook for advocates of civic education in other states. Even without winning judicial declaration of a state or national constitutional right, further litigation could lead to other settlements creating new state commitments and resources for education on a state-by-state basis. This movement for securing civic education in schools may also bolster or benefit from other movements to gain expanded implementation of state constitutional rights to education. For instance, after an effort by Native American groups and others to launch a ballot initiative, New Mexico now has the first state constitution that funds early childhood education as part of its state right to education. 

The proliferation of challenges and crises facing constitutional democracy in the U.S. has now energized proposals for new bi-partisan federal legislation to create historic investments in supporting civic learning in K-12 schools, such as the “Civics Secures Democracy Act.” At the end of 2022, Congress chose a more limited and piecemeal approach by appropriating $20 million dollars for a competitive grant program, “Civics National Activities.”^[11]

 Thus, despite several promising recent possibilities for expanding rights and responsibilities for civic education at the state or national level, civic education remains an uneven patchwork across schools. In the U.S., preparation for democratic citizenship is left unequal and susceptible to shifting political tides at the federal, state, and local levels. 

II. Inadequate Civic Education as Contributing to Undemocratic ‘Fault Lines’ in U.S. Constitutional Democracy 

Building upon Sanford Levinson and Cynthia Levinson’s work, we can consider how variable, unequal, or missing civic education doesn’t just lead to a lack of individual knowledge or individual disengagement. It creates patterns of weakness and fractures across the system of constitutional democracy, undermining the public’s epistemic capacities, the inclusiveness of democratic ‘inputs,’ and undermining civic and institutional capacities to address the serious problems facing constitutional democracies. 

Levinson’s scholarship does not identify the lack of right to education or civic education as a key constitutional flaw, but he and Cynthia Levinson discuss twenty problematic structures that create problematic ‘fault lines’ in the system. These include the Electoral College, the Article V Amendment Process, unequal representation of the Senate, and Presidential veto power. They also emphasize voting rights, for which civic education can be seen as a preconditional right, as Justice Thurgood Marshall and others have argued. 

But Levinson and Levinson should reconsider whether constitutional fault lines should be conceived as including only “hard-wired” elements of the Constitution’s structure and institutions. The fact that the lack of a recognized right to education, and civic education, might be characterized as part of what Levinson terms “the constitution of conversation” (in which change is possible through discourse, ideology, and judicial interpretation rather than an Article V amendment), does not seem to render its absence any less deeply problematic for the health of constitutional democracy. 

The work of comparative constitutional scholar Vicki Jackson supports the idea that providing civic education is crucial for both the democratic and constitutional elements of constitutional democracies.^[12] Jackson emphasizes the role of “the knowledge ecosystem” and how institutional dissemination of civic knowledge and capacities is a functional underpinning for constitutional democracy by providing “skills of critical inquiry and other habits of mind that are important for citizens in a democracy,” such as “the courage to express one’s thoughts; tolerance for those who disagree or are different; a capacity to engage with others both collaboratively and in reasoned disagreement” and “willingness to participate in “sustaining or improving the broader community.” 

The lack of civic education, however, not only creates unequal citizenship, but it contributes to constitutional dysfunctions and weaknesses. This is because, when significant segments of the body politic lack civic knowledge, or when there is unequal democratic inclusion, participation, or influence on public debates, representative institutions, political decision-making, and creation of law, this contributes to knowledge deficiencies, participation gaps, and injustices in the civic infrastructure. Such problems can then intersect with other political forces and constitutional features to deepen conflicts or fuel turbulent upheavals. 

Thus, the lack of adequate civic education in schools can have far-reaching repercussions not only for individuals, but for the political body and the functioning of constitutional democracy: it continues to undermine the quality and equality of democratic citizenship in the US; it weakens the knowledge base; it creates barriers to inclusive democracy; and it creates barriers to constitutional health and improvement. This is the case insofar as it leaves many people—but especially those who have the least power and privilege in the existing system – inadequately and unevenly informed and empowered for participation—including the forms of participation that might lead to change, whether through new statutory law, influence on parties or courts, perhaps a formal Article V amendment or Levinson’s favored route of constitutional convention. To be clear, civic education in schools is not a panacea for problems of civic disengagement, misinformed engagement, and unequal engagement, but there is rising evidence that it is a crucial institutional tool for ameliorating them. 

The Amicus groups that participated in Cook (A.C.) v. McKee to support the right to civic education might be more persuasive regarding just how problematic and undemocratic the continued repercussions of this constitutional weakness or fault line have been. The Advancement Project and NAACP emphasize how a lack of civic education limits democracy and democratic citizenship, especially for groups historically blocked from citizenship. They write that 

Unequal access to a quality civics education, and the resulting unequal access to meaningful participation in public policy, is a racial justice issue. Remedying that inequality is an essential step toward securing our participatory democracy for all of the people for generations to come. 

As this argument suggests, civic education should be seen as more than a fundamental individual right. It is a lynchpin for a more broadly empowered and inclusive—which is to say real—constitutional democracy. I think Sandy Levinson and Cynthia Levinson may agree with this argument, and perhaps the next edition of “Fault lines in the Constitution” will discuss the need to address the missing right to an education that enables participation in constitutional democracy. 

III. Conclusion: Civic Education for a More Democratic and Just Constitutional Democracy, and for a Critical Constitutional Patriotism

This brings us to the question of what type of civic education could help foster informed democratic engagement and a more robust and inclusive constitutional democracy. Historically, civic education courses in the U.S. taught introductions to abstract constitutional principles, rights, and structures, and creation of the 18th century U.S. Constitution, with little attention to complexities of controversial issues, or to political participation other than voting.^[13] But it is clear that much more is needed to enable participation in and creation of constitutional democracy, and there is growing research exploring how to promote civic and political engagement in people from different backgrounds.^[14] In the realm of constitutional scholarship, John Finn and I have argued that it is important to recognize and learn about the ‘civic constitution’—the sphere of citizens’ involvement with constitutional ideas, discourse, and politics that interacts with the Constitutional text and official constitutional interpretations and laws—and how this shapes constitutional democracy and its culture, rights, and laws.^[15] 

Much of Sanford Levinson’s work offers implicit or explicit lessons and models for forms of civic education that could enable critical and constructive thinking and action. His book Fault Lines in the Constitution with Cynthia Levinson stands out most clearly as a model for civic learning, with its accessible approach to exploring the origins and operation of the Constitution’s text and structure, and some of the disagreements and dysfunctions that have stemmed from this. Overarching civic themes in this book include the encouragement of ‘debates open to all’ regarding constitutional issues, and opportunities to see oneself as a participant in guiding and improving constitutional democracy by comparing constitutional approaches and examining possibilities for change or amendment to the U.S. Constitution. 

But much of Levinson’s other work also includes insights that could enrich civic education for constitutional democracy. In his 1988 book on Constitutional Faith, written after the bicentennial, Levinson emphasized just how important “unofficial” and non-judicial constitutional interpretations—such as those of President Lincoln and Frederick Douglass—have been for creating new and more just principles of constitutional democracy.^[16] And, for Levinson, Douglass’s insistence that the Constitution must be treated as a charter for freedom and equality enabled his own faith in the possibilities of constitutional democracy. But as Levinson has further considered issues of constitutional faith, he has become more concerned that an excess of faith or misinformed veneration can perpetuate problems and injustices and impede useful constitutional changes.^[17] The January 6th insurrection was a terrifying demonstration of such excesses of constitutional faith. Some who violently breached the Capitol to block the Senate’s confirmation of the electoral vote were members of right-wing extremist and paramilitary groups such as the Oathkeepers, who believe they are keeping an oath to defend the US Constitution. This reveals how dangerous this type of constitutional faith, or bad constitutional patriotism, can be. It also reveals that we need models of a more democratic and just constitutional democracy, and of the type of creative and critical constitutional patriotism that could advance this. Levinson’s own critical constitutional patriotism has helped to illuminate and exemplify these commitments. 

Much of Levinson’s scholarship has illuminated undemocratic or dysfunctional constitutional structures—with calls for a new constitutional convention to fix them. But the present era of threats and crises suggests that we need to also remember that constitutional texts, designs, and structures alone can neither prevent challenges, nor generate responses to them. We need to be at least as concerned about the civic constitution—the civic culture, infrastructure, and ecosystem—that interacts with formal structures and institutions. And we need to recognize and support the crucial role of civic education for promoting the knowledge capacities and ethical commitments that are needed to create a robust constitutional democracy. 

Elizabeth Beaumont is an Associate Professor of Politics and Legal Studies at the University of California, Santa Cruz. You can contact her at beaumont@ucsc.edu.