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.
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.