Media and the Twitter-verse are having a jolly good time with Florida Governor Ron DeSantis’ recent channeling of Winston Churchill to promote his war on WOKE. Instead of pledging “we shall never surrender” by taking the battle against Nazi Germany to the beaches, landing grounds, fields, streets and hills, on Saturday DeSantis told Iowans:

We will wage a war on the woke. We will fight the woke in education, we will fight the woke in the corporations, we will fight the woke in the halls of Congress. We will never, ever surrender to the woke mob.

He often refers to the “WOKE ideology.” Why?  Because ideology is about what individuals think or intend to do, not what they actually do.  Just ask the Governor.  On April 22, 2022, he signed the Florida “Individual Freedom  Act.” A more appropriate title would be the “Selective Individual Freedom Act,” since the law does not apply to a woman’s right to choose, parents’ right to determine their child’s health care, academic freedom at the state’s colleges and universities or a corporation’s right to protect its employees from a pandemic or promote diversity and inclusion.

Equally important, WOKE refers to getting up in the morning, that time of day when we ask ourselves about the future.  What am I going to do today?  It is also a time of reflection, to consider what we learned from yesterday’s experience.  Am I going to make the same mistakes?  How can I be a better person than I was 24 hours ago?

I still cannot understand why WOKE is a bad thing.  Consider the following.

• If  the founding fathers had been less WOKE about religious freedom and the divine right of kings, would we still be British subjects, beholden to the tenets of the Church of England?
• If Abraham Lincoln had been less WOKE, would the country still be divided into free and slave states?
• If Teddy Roosevelt had been less WOKE, would we be able to enjoy America’s national parks?
• If Susan B. Anthony and Elizabeth Cady Stanton had been less WOKE, would women have gained the right to vote?
• If Nelson Mandela had been less WOKE, would a majority of South Africans still live under apartheid?
• If Franklin Roosevelt had been less WOKE, would a majority of older Americans be living in poverty?
• If Martin Luther King, Jr. and Lyndon Johnson had been less WOKE, would African-Americans still be legally discriminated against or lack voting rights in some states?

Though not of the same historic consequence or impact, each of us has the opportunity to be more WOKE every day. 

• Is writing a check to a food bank but not volunteering to staff the facility WOKE enough? 
• Is contributing to relief funds for dislocated Ukrainians but not housing a refugee WOKE enough?
• Is supporting a ban on assault weapons but not attending a protest rally WOKE enough?
• Is giving a blind person the right of way at an intersection but not getting out of your car to offer assistance WOKE enough?
• Is calling animal rescue after spotting an injured bird but not taking it to the shelter WOKE enough?

That is why I propose “The SLEEP Act.”  It is based on a simple principle.  When we go to bed each night, ask ourselves, “Was I WOKE enough today?  Could I have done more?”  If yesterday was not a WOKE day, when the alarm goes off the following morning, do not just wake up.  BE MORE WOKE.

For what it’s worth.
Dr. ESP

In my previous blog, I expressed concern ideologues have hi-jacked the legitimate push for increased and, in some cases, mandatory civics education.  That is not my only fear.  Every day there is a news story that suggests even the most honest, well-intentioned efforts to expose students to the grand experiment we call the United States will be more akin to English Literature curriculum focused on 21st century fiction.  Consider the following examples.

THE FIRST AMENDMENT

Of the five restraints on Congress embedded in the First Amendment, James Madison, its principal author, opened, not with freedom of speech or the press, peaceful assembly or petition of grievances.  Instead, he chose religious freedom, ensuring Congress would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Any classroom discussion, hopefully, would inform students the framers were of various religious backgrounds, some of which were contrary to the tenets of the Church of England.  And many of the founding fathers, including Washington, Jefferson, Franklin, Madison and Monroe, were deists, who followed the natural laws of God but did not believe in a supernatural deity or the divinity of Jesus.

In the 1971 Supreme Court case Lemon v. Kurtzman, the justices, by an 8-1 vote, established a litmus test to determine whether a specific government policy or action unconstitutionally promotes religion.  The three conditions, all of which must be met, were:

• Have a non-religious purpose;
• Not end up promoting or favoring any set of religious beliefs; and
• Not overly involve government with religion.

Some might argue the First Amendment applies specifically to Congress, not a state legislature.  That would be true prior to ratification of the 14th Amendment in 1868.  While Section 1 guarantees “equal protection of the laws” to all citizens, Section 5 gave Congress “the power to enforce, by appropriate legislation, the provisions of this article.”  Subsequent Supreme Court decisions confirmed these provisions extend to state legislatures.

The word seems not to have reached the Lone Star state.  During the 2023 session of the Texas Legislature, the Senate passed SB1515, requiring public schools to display the Ten Commandments in every classroom.  The sponsor Phil King (R-Weatherford) said, “[The bill] will remind students all across Texas of the importance of the fundamental foundation of America.”  King, who earned a law degree from Texas Wesleyan University (founded by the Southern Methodist Episcopal Church in 1890), must have slept through his constitutional law class when they studied the Bill of Rights.

I will go out on a limb and guess the text of the “classroom Ten Commandments” would be that enshrined in the King James version of the Old Testament, as opposed to the language in the Torah, though the first four commandments in both clearly violate the Lemon v. Kurtzman test.  It unequivocally establishes the existence of a deity, prohibits an image or likenesses of deities (would that include the prophet Mohammed or the ceiling of the Sistine Chapel), requires a day of reference to a deity and prohibits vain use of the deity’s name.  The fourth commandment represents the most grievous violation of the First Amendment, declaring this deity to be “the Lord THY (my emphasis) God.”  Seems THY has no choice in the matter.

Fortunately, the Texas House rejected the bill, although Senator King promises to reintroduce the measure in the next session.  So there is still the possibility we will one day read a story in a Texas newspaper about a student being arrested for muttering “Jesus Christ” when his or her teacher announces a pop quiz.

THE FILIBUSTER

Regardless of one’s personal perspective on the use of the filibuster in the legislative process, any discussion of the practice’s history and evolution should include South Carolina Senator Strom Thurmond’s 24 hour 18 minute filibuster of the Civil Rights Act of 1957, the longest in U.S. Senate history.  In other words, students should understand that sometimes those who claim the filibuster exists to protect the rights of the minority depends on their definition of “minority.”  Except in Florida.  To do so, could put a teacher’s career and livelihood at risk under the Sunshine State’s 2022 “Stop WOKE Act.”

Fortunately, U.S. District Judge Mark E. Walker for the Northern District of Florida halted enforcement of the law, declaring it gave the state “…unfettered authority to muzzle its professors in the name of ‘freedom.’”  He described it as a form of “doublespeak,” a reference to George Orwell’s novel 1984.  Governor Ron DeSantis has, of course, pledged to appeal the case to the U.S. Supreme Court which even Judge Walker admitted might overrule him, noting, “The Supreme Court has never definitively proclaimed that ‘academic freedom’ is a stand-alone right protected by the First Amendment.”

THEORIES OF CONSTITUTIONAL INTERPRETATION

Any course on Article III of the Constitution and the role of federal courts should expose students to the varying philosophies by which judges, and particularly Supreme Court justices, interpret the source document.  These include:

• Textualism.  Reliance on the exact words and structure.
• Originalism.  Its meaning at the time of its ratification.
• Judicial Precedent. Takes into account prior decisions.
• Pragmatism.  Takes into account practical consequences of a decision.

As we now know, there is a new theory which more appropriately could be called “Situational Interpretation.”  By this standard, a self-proclaimed textualist will support the principal concepts in Citizens United v. FEC that money equals speech and corporations are people.  I have been looking for that constitutional language since the 2010 decision without success.

Most recently, the originalists on the current high court have ignored the provision in Article III, Section 1, which states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”  And will Chief Justice Roberts and the originalist majority also ignore Section 4 of the 14th Amendment if President Biden invokes the provision which states, “The validity of the public debt of the United States shall not be questioned?”  The fact no president has challenged Congress’ power to prevent payment of constitutionally authorized expenditures seems to be a long-standing violation of the oath of office “to preserve, protect and defend the Constitution of the United States.”

My point?  Civics lessons which rely solely on de jure provisions of America’s founding documents and subsequent laws differ significantly from their de facto implementation. If the civics education movement does not recognize these discrepancies, rather than informing students of their rights and obligations of citizenship, it will become just one more affirmation of the adage, “Watch what we say, not what we do.”

For what it’s worth.
Dr. ESP

 In a 1987 survey, about half of the American citizens polled thought that the phrase, “from each according to his ability, to each according to his needs,” came from the U.S. Constitution. Regardless of what one thinks of that sentiment, it would improve political discourse to identify it correctly as classic Karl Marx. 

~Nick Down, Senior Program Officer, ACTA

The above quote comes from Mr. Down’s testimony in support of SB117 before the Ohio State Legislature.  If you are not familiar with ACTA (American Council of Trustees and Alumni), it is a non–profit organization which promotes “…academic excellence, academic freedom and accountability at America’s colleges and universities.”  Hard to argue with that in the abstract.  Unfortunately, Mr. Down seems to be the one who needs to be held accountable for his lack of academic excellence..

SB117 was introduced “to establish the Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University, to establish the Institute of American Constitutional Thought and Leadership at the University of Toledo, and to make an appropriation.”  As the holder of three degrees in political science, I welcome the idea that an understanding of the constitution, governance and civic responsibility is critical to any system based on the will of the governed.  Unfortunately, so many good ideas have been hijacked by ideologues, particular members of MAGA world, to justify actions contrary to the intended purpose of the original concept.

One way you can tell when such hijacking is in process is whether proponents of an initiative either exaggerate, misrepresent or outright lie about evidence supporting their position.  Which brings me back the opening quote and Mr. Down.  Since he did not identify the source of the 1987 survey, I tried to find it on the internet. I did find several other organizations which cited the 1987 survey.  Only one Education Week provided a link to the actual survey source, The Bill of Rights Institute.  However, any information about the survey had been removed from their website.

A 2001 survey commissioned by Columbia Law School is also cited as the source for claims similar to Mr. Down’s.  However, in June 14, 2002, Los Angeles Times reporter Tim Rutten suggests the results may not have been so clear cut.  The question did not ask if the phrase was in the Constitution.  It asked if the phrase “was or could have been written by the framers and included in the Constitution.”  You know who else COULD have thought “from each according to his ability…?”  Jesus.  Actually, he kind of did according to the gospels and the parable about the good Samaritan.”  Even though many of the founders were “deists” who did not believe the source of the Bible to be the divine word of God, they did advocate the values contained within.  

Finally, when you look at the actual survey results, you see how intellectually suspect the spin has become.  Thirty five percent said yes.  But we do not know if that response meant they thought the phrase was actually in the Constitution or whether the framers simply thought it might be a good idea for the haves to aid the have-nots.  Thirty one percent said no.  Were they referring solely to the document itself or, through some form of time-travel mental telepathy, included the founding fathers’ mindset?  The only intellectually honest respondents are the 34 percent who said “don’t know.”  There is no black-and-white answer to such an ambiguous and poorly constructed survey question.

Mr. Down does not stop there. He further bolsters his case using information from an ACTA commissioned survey that  “only 18% of college graduates identify James Madison as the ‘Father of the Constitution.'” The survey consisted of 15 multiple choice questions which you can still take on-line HERE.  The choices were:  Benjamin Franklin, Cassius Clay, Thomas Jefferson or James Madison.  The Constitution was the product of a Constitutional Convention consisting of 55 delegates appointed by the states (with the exception of Rhode Island which chose not to attend).  Should we really lose sleep if someone thought Benjamin Franklin, the oldest delegate at age 81, was the “Father of the Constitution?”  One would expect to see this question on Jeopardy instead of a civics quiz.

Civics is better served when we focus on institutions and processes, not personalities.  Take question #15, “Who is the current speaker of the House?”  Options:  Nancy Pelosi, Mitch McConnell, Paul Ryan or Bernie Sanders.  Depending on the timing of the survey, either Paul Ryan or Nancy Pelosi COULD be correct.  If you take the survey now, the answer is the non-existent option  “None of the above.”

Here is a more recent example of the difference between a process and personalities.  Which would be a better question to gauge knowledge of the process by which we elect the president?  Question #1:  Who is the current president of the United States?  As of September 2022, 61 percent of Republicans still believed Donald Trump won the 2020 election (Monmouth University poll).  Question #2: Who certifies a state’s electoral college delegates and sends the winners’ names to Congress to be counted on January 6th?  Options:  Governor, Secretary of State, State Legislature or Varies by state law or constitution.

I raise the above question because several states besides Ohio are considering funding civics programs in K-12 schools and public universities.  The value of these programs, as is so often the case, depends on the motives of those promoting the programs. In my home state of Florida, the governor and state legislature are mandating civics education as long as the curriculum does not offend their base voters.  Civics education, especially in higher education, should promote Socratic dialogue, not lectures.  Imagine a political science course based on issues the framers addressed if the convention convened in 2023 instead of 1787.  If I were teaching that class, there would only be one requirement.  Any evidence provided to support a student’s position must be fact-based sans misinterpretation or ideological spin.

Unlike some of the arguments presented by the ACTA representative before the Ohio legislature.

For what it’s worth.
Dr. ESP