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 17th 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-20th 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 26th 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.