We are in the midst of high season for Supreme Court decisions. Every week in June the Court releases decisions, generally saving its most consequential rulings for the end of each term. Scholars and opinion writers are on high alert, ready to analyze the meaning and significance of the decisions as they are handed down.
So far this month the Court has made thirteen decisions on issues ranging from Native American tribal sovereignty and immigration to the Affordable Care Act, the meaning of the Constitution’s Free Exercise Clause and of the Appointments Clause. These are no doubt consequential and important in giving life to our laws and Constitution.
But accompanying this annual high moment in this country’s legal life, lies vast ignorance about, and even hostility to, the Constitution and norms of democratic life. That ignorance and hostility provides fertile ground for social movements and public officials who seek to undermine the rule of law and democracy and replace it with authoritarianism.
Constitutional ignorance is not new. But it is now more consequential than ever. Coping with it is now a matter of some urgency.
Hostility to democratic norms makes it much more difficult for pro-democracy forces to rally public support. It also means that appeals to democracy are no longer guaranteed to resonate with large segments of the American population.
And even more consequential than constitutional ignorance is the alienation that many Americans feel toward constitutional democracy. Many do not really know what it means to think democratically or understand the virtues and habits of mind that are necessary in a democracy.
For a long time, the American public has shown little grasp of the basic framework of American government or the substance of the Constitution and Bill of Rights. Thus, as recently as 2019, only 39% of those surveyed could correctly name all three branches of the federal government.
In 2020, spurred by protests, impeachment, and constant coverage of Trump, that number jumped to 51%, an improvement but still pretty paltry. 23% could not name any of the three branches.
However, 73% of the respondents to that same survey were able to name freedom of speech as one of the rights guaranteed by the First Amendment, up from 48% in 2017.
Knowledge of the Amendment’s other rights have also increased in recent years. 47% now know that freedom of religion, a hot topic for Supreme Court watchers, is protected. That number is up from a low of 15% in 2017.
42% could correctly name freedom of the press, 34% named right of assembly, and 14% named right to petition the government as First Amendment rights.
19% of those surveyed could not identify any First Amendment right.
Only 51% knew that the Supreme Court is supposed to have the final word on matters of constitutional interpretation and 54% that a 5-4 decision by the Court creates binding law.
63% correctly said that the Constitution does not allow a judge to insist that a defendant testify at their own trial, and 53% of Americans mistakenly think that people who are here illegally do not have any rights under the Constitution. That view is greater among self-identified political conservatives (67%) than among liberals (46%).
Sadly, the best known provision of the Bill of Rights turns out to be the Second Amendment. 83% of Americans know what that Amendment says and, more surprising, that the Supreme Court has recognized a constitutional right for individuals to own a handgun.
This is a kind of good news/bad news picture. While the Trump years put a dent in constitutional ignorance, the bad news is that even after the tumult of the Trump years and the saturated media coverage of constitutional issues, substantial numbers of Americans remain in the dark about the Constitution, its procedures, and the rights protected by it.
Any way we view it, this picture has enormous consequences. To take but one of them, Arizona State University Professor Paul Carrese argues that what he calls “historical and civic ignorance” contributes to the polarization that is generated on social media. In his view, it is “easier for the technology to have such a powerful effect if you start with no foundation. The winds are blowing and you have no ballast….”
Beyond what people know about the Constitution and the ways the American system of government works is the question of how attached they are to them.
Here there is little good news.
A study published in 2017 indicates that when people were asked to rate on a scale of 1 to 10 how “essential” is it for them to live in a democracy 72% of Americans born before World War II check “10,” the highest value. But the millennial generation (those born since 1980) “has grown much more indifferent.” Less than 1 in 3 hold a similar belief about the importance of democracy.
The New York Times reports that while 43% of older Americans thought it would be illegitimate for the military to take power if civilian government was incompetent, only 19% of millennials agreed.
Other studies report similar findings. A 2018 Brooking study noted that when presented with five questions designed to measure support for democracy, only “54 percent of Americans give the pro-democratic response to all five, and an additional 19 percent do so for four out of five. Of the remaining 27 percent, six percent give anti-democratic answers to four or five questions, with the remainder doing so for two or three.”
That report notes that “anti-democratic attitudes are especially prevalent among the least educated and least politically engaged citizens, and among those who don’t follow the news or vote regularly.”
Still another study discussed in a 2020 Washington Post article found that “just under half of White American respondents scored high on measures of authoritarian personality, a proxy for authoritarian voting. Nearly 1 in 5 scored very high. Of these authoritarians lurking among us, nearly 7 in 10 were self-identified Republican voters.”
So, in this season when we eagerly await the latest Supreme Court decisions and celebrate when Justices surprise us by voting against the party of the president who appointed them, we should not forget that there is much work that needs to be done to cope with constitutional ignorance and alienation. We can no longer take for granted that our fellow citizens will stand up for the rule of law and democracy.
Bringing a new and self-critical perspective to civic education is a good place to start, but it is just a start. Our leaders need to do more than offer praise for democracy. They must take care to explain why our constitutional democracy is worth fighting for, and they must take up that fight every day.