Michael Serota, whom I’ve blogged about before, has an interesting piece forthcoming in the Connecticut Law Review, titled Popular Constitutional Interpretation. Here is the abstract:
Over the last decade, the theory of popular constitutionalism has gradually become one of the most important developments in American jurisprudence. By trumpeting a more pronounced role for the public in the constitutional decision-making process, popular constitutionalists hope to reestablish the connection between the American people and their Constitution. One strand of popular constitutionalism – what I call popular constitutional interpretation – would go so far as to transfer final interpretive authority over the Constitution from the Supreme Court to the public. The questions left unanswered, however, are whether “the people” could faithfully interpret the Constitution, and relatedly, whether the outcome of popular constitutional interpretation would be normatively desirable.
This Article answers both of these foundational questions by analyzing contemporary research in psychology and political science. Conceptualizing a functional system of constitutional adjudication as requiring interpreters to demonstrate fidelity to the Constitution’s text, I argue that the people must possess a set of traits I label “interpretive competence” in order to maintain the Constitution’s integrity in such a system. Given that such competence is currently lacking, I argue that popular constitutionalists must turn to institutions of civic education – and to the civic curricula of the eighteenth and nineteenth centuries – to cultivate the people’s interpretive competence.
From the article, a passage on the role of civic education:
While the public’s dearth of constitutional knowledge and legal reasoning skillssuggest that the normative problems with popular constitutional interpretation aresubstantial, they simultaneously illuminate where popular constitutionalists should focustheir efforts: on institutions of civic education.85 As the Director of the Center for CivicEducation explains, “the research findings revealing widespread lack of knowledge ofpolitics and government . . . are not surprising when one considers the lack of widespreadand effective civic education in our schools.”86 Those who seek to democratize theprocess of constitutional interpretation must do so not by stigmatizing the Supreme Courtand the practice of judicial review, but by empowering the public through cultivating itsinterpretive competence. If the theory of popular constitutional interpretation is ever tomake its way out of the ivory tower, then popular constitutionalists must be able todemonstrate that the average public interpreter would likely be competent. By providingthe people with the skills necessary to approach constitutional decisionmaking in aninformed and principled manner, popular constitutionalists could narrow the gap in expertise between the judiciary and the people, thereby making a stronger normative casefor implementing the reforms for which they advocate.87
I could not agree more, and this is largely the goal of the Harlan Institute. Michael focuses on how the most important period to engage students in in High School:
There is a general consensus among researchers that civic education leads to greaterstudent involvement in the political process,97 and that increasing student knowledge“also appears to raise students’ capacity for reasoning and exposition about civicmatters.”98 For most, however, civic education begins and ends in school. And given thathigh school is the last time that most Americans study government, “high school civiceducation provides many citizens with the most comprehensive, systematic presentationof the American constitutional tradition that they are likely to receive at any point in theirlives.”99
Michael also notes that modern day civic curriculums are more historical, than analytical. Again, I could not agree more.
Unfortunately, however, in the twentieth and twenty-first centuries, the subjectsof constitutional law and our legal system have receded from the high school civicscurriculum.115 Further, the curricula that do address these areas are primarily historicaland structural in nature, not analytical.116 This status quo is particularly problematic forpopular constitutionalists because of the intellectual burdens that popular constitutionalinterpretation would place on American society. It is not enough that a civic curriculumbe geared toward producing “an emotional attachment to the polity”; if the peoplethemselves are to play a meaningful role in the realm of constitutional interpretation, thecurriculum must also help students develop the legal knowledge and critical reasoningskills that received so much emphasis in the past.117 This is where popularconstitutionalists should consider devoting their efforts in the future: to reforming the civic curriculum to cultivate a culture of interpretive competence within the Americanpeople.118
Not only is this approach legitimated by early American civic curricula, but moreimportantly, it rests upon sound normative foundations. It is axiomatic that “[e]ffectiveinstruction in civics and government should include . . . the essential skills, principles,and values required for full participation in and reasoned commitment to our democraticsystem.”119 Knowledge of our legal system, the courts, and the development ofconstitutional law is undoubtedly part of that picture. Further, from a neurologicalperspective, research in developmental psychology suggests that there are cognitivebenefits that accrue to individuals who struggle with difficult interpretive problems.120 Aspsychologist Irving Sigel explains, difficult interpretive problems cause students to“distance” themselves from the text and to create nuanced mental representations of theproblems they are trying to resolve, leading to a deeper, fuller understanding of thoseissues.121 Finally, it is likely that there is also pedagogical benefit to incorporatingconstitutional interpretation in the classroom; as one commentator notes, “grappling with a text’s ambiguities may ultimately lead students to feel more comfortable with the ‘grayareas’ that are an inevitable part of life.”122
This is the heart of what FantasySCOTUS.org accomplishes–we are not studying historical cases, but analyzing and understanding current cases.
Michael proscribes what he sees as a way of implementing this theory:
Having established the soundness of cultivating the interpretive competence of thepublic in theory, the question remains as to how this goal might be accomplished inpractice. First and foremost, this process must begin by developing a politically-neutralcurriculum designed to teach Americans how to think about legal questions, and morespecifically, questions of constitutional law, in a rational and deliberative manner.Undoubtedly, this would require a long-term educational strategy, such as that employedin the eighteenth and nineteenth centuries when students would incrementally confrontmore challenging legal texts and analysis as their learning progressed. Additionally,given the substantial demands of a system of popular constitutional interpretation,beginning early is key. Establishing interpretive competence requires acquiring bothsubstantial amounts of empirical knowledge and legal reasoning capabilities—asubstantial task, indeed!123To be sure, the ability to fulfill the foregoing objectives on any widespread levelnot only requires a healthy dose of optimism, but also demands a significant investmentof time, energy, and resources on behalf of educators and students alike. But as onecommentator so eloquently notes.
Thus, although a nation of competent interpreters may at present be little morethan a constitutional law professor’s noble dream, it is nonetheless an admirable goal, andone for which I believe the popular constitutionalist agenda is a natural fit. Evensecondary-school age children seem to be capable of engaging in the task ofconstitutional interpretation in a meaningful way.125 Whether students nationwide willhave access to the type of curriculum and instructors that can cultivate these skills andcan inspire then to expend the energy to do so, however, is yet to be seen.
From the conclusion:
A system of popular constitutional interpretation would require that Americans be able toengage in the constitutional decisionmaking process with interpretive competence. Sincethis competence is currently lacking, the only solution for popular constitutionalists is toadvocate for enhancing the American civic education experience. Even if they fail toimplement the judicial reforms they desire, they will have nonetheless made a substantialcontribution to democracy in the process.
I whole-heartedly concur with everything Michael writes about. This is a must-read for anyone interested in civic education and the Constitution.
For a related article, see my previous post on Tom Donnelly’s article, A Popular Approach to Popular Constitutionalism: The First Amendment, Civic Education, and Constitutional Change. Tom Donnelly, a Climenko Fellow at Harvard Law School, has published some great scholarship about the intersection of popular constitutionalism and civic education. I find his work fascinating. Tom has graciously accepted an invitation from the Harlan Institute to develop some content for the curriculum of FantasySCOTUS, including this podcast on Schwarzenneger v. EMA.