Donnelly, Tom. “Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children.” Yale Law Journal 118 (2009): 948-1001.
Donnelly dreads how we teach students Judicial Supremacy with resistance to the Court linked to “the actions of self-interested politicians, at best, and historical villains, at worst.” Similarly, Donnelly notes that our schools’ “textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and ‘court-packing), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations)” (948). He describes constitutional storytelling as an imaginative process (951). Donnelly stresses that “It is through these stories that we come to understand the promises guaranteed by our Constitution as commitments realized over time—commitments to the proper scope of religious freedom, property rights, free expression, and equal protection, among others” (952). “Although important studies have been conducted on the portrayal of race and gender in our school curricula, little attention has been paid to the broader constitutional stories we tell our schoolchildren—stories that shape their early conception of the proper role of government in their lives and the relative balance of power between the constitutive branches.” Donnelly poses the question: “Do these stories frame judicial review as part of our dynamic system of checks and balances, or do they advocate outright acquiescence by Congress, the President, and the People in the face of an assertive Court?” (953). Donnelly highlights that “Normatively, critics of the Court argue that the common sense of the American people is being consistently overturned by a handful of insulated, elite lawyers in robes, and that the American people (either consciously or unconsciously) have acquiesced to this practice. Historically, critics further argue that this was not always the case.” Donnelly affirms that “throughout American history the democratically elected branches and the People have often challenged the Court’s authority and asserted their right to interpret the Constitution” (957). Our “key constitutional dialogues are being threatened by the rise of an increasingly aggressive Court, especially in the context of Congress’s enforcement power under Section 5 of the Fourteenth Amendment” and this is a concern of Donnelly’s and popular constitutionalists in general (960). A sort of anonymous and questionably democratic Court has sustained public support even in unpopular decisions due to a process described by Donnelly as support being generated and regenerated over time (961-962). Donnelly writes “Unlike other institutions, which are often the topic of public (and private) conversations, the only sustained exposure many citizens get to information about the Court and its role in our constitutional system is in our schools, through civic education” (963).
Donnelly reminds us that “From the earliest years of American public education, one of its key goals has been to prepare young Americans for the duties and responsibilities of citizenship. Our history and government courses have played an outsized role in working to achieve that goal” (964-965). Donnelly contends that the goal of civics classes is “connecting young Americans to our Constitution, telling them our stories, teaching them about our institutions, and preparing them for our political system.” Donnelly notes that “political scientists concluded in the 1960s and 1970s that other factors outstripped the importance of civic education in shaping Americans’ views about their government. What followed was a dormant period of scholarship on civic education and political socialization—a period that has only recently come to an end.” Political scientists could not differentiate impacts of civic education from education more generally or from the influence of other institutions altogether, which Donnelly notes as a challenge for his research (966). Donnelly references evidence that political stances shaped during teenage years remain during adulthood (967). Donnelly elaborates by asserting that the “evidence suggests that schooling importantly shapes foundational civic knowledge—knowledge about the structure of our government, the animating values of our political system, and the canonical stories of our political tradition” (968). “Because the People rarely focus on the Court, they are often left with the perceptions that were formed during (perhaps) the only time in their lives when they gave much sustained though to the Court—during their school years…people may treat judicial supremacy as a fact and not an opinion—a key structural element of our constitutional system and not a contestable view about judicial power,” according to Donnelly. In order for new information to change our beliefs, it has to be received, understood, clearly relevant to evaluating policies, discrepant with past beliefs, and credible (969). Since information about the Court is rarely actually received by the American public, Donnelly writes that its activities rarely alter public perception. Donnelly argues that even if the Court writes a controversial opinion and it catches media attention, the outrage does not last long which allows the Court to sustain strong support (970). Commerce plays a role in textbook content but Donnelly also mentions: “textbook content is shaped by local and state governments through their respective textbook adoption processes. Roughly half the states adopt textbooks at the state level, while the balance of the states leave those decisions to local school districts” (973). Donnelly continues: “Fewer than half of high school history teachers majored or minored in history. The result is that these poorly trained instructors must lean heavily on the textbook—especially as novices” (974). Education in “contemporary constitutional culture…will shape the citizens of tomorrow—their trust in government, their understanding of its institutions, and their self-conception as citizens. If constructed properly, Donnelly contends that the official narratives taught in public schools could capture the constitutional imagination of America’s schoolchildren and entrench the important process of citizen formation (975).
Donnelly states that “The three race cases—Dred Scott, Plessy, and Brown—provide a redemptive narrative arc, as the Court moves from reinforcing slavery and racism in American society to pioneering equal rights for African Americans” (978). He continues: “This story often begins with an extensive discussion of Dred Scott, portraying the Court as complicit in the sin of slavery and focusing on the role the Court played in precipitating the outbreak of the Civil War” (979). Donnelly maintains “Dred Scott did not emerge as a clear-cut case of constitutional evil until more critical accounts arose in the 1960s and the 1970s, when Abraham Lincoln emerged as an anti-Dred Scott crusader and the decision was denounced as ‘sensational.’ Today, Dred Scott is portrayed as the Court’s original sin” (980). “Again, Plessy only emerges as a constitutional sin over time. In the 1940s and 1950s, Plessy was not even mentioned in the textbooks…..in the 1960s, textbooks began to mention Plessy, but excused this act of constitutional evil.” Donnelly continues “Today, Plessy is the Court’s second great sin, and the specific sin that is redeemed by the Warren Court in Brown.” On Brown, Donnelly writes “the case becomes the canonical example of the Court overcoming the odds to triumph over evil” (981). “Throughout our contemporary textbooks, a moderate form of judicial supremacy often masquerades as judicial review. Some textbooks simply conflate judicial supremacy and judicial review.” There are, according to Donnelly, “even textbooks that note the devices at Congress’s disposal to challenge the Court present them as outside the mainstream of typical constitutional actions” (982).
Donnelly asserts that “Today’s textbooks consistently describe the Court as the final interpreter of the Constitution. Although this finding tracks with the expectations of popular constitutionalists like Larry Kramer, it may also be regarded as stating the obvious, that the Court often speaks last in many (perhaps most) constitutional disputes.” Donnelly cites Justice Jackson: “’We are not final because we are infallible, but we are infallible only because we are final’” (984). Donnelly suggests“There is scant mention of President Jefferson’s more aggressive challenges to the Court, though one contemporary textbook mentions the impeachment of Justice Samuel Chase. Only two contemporary textbooks consider President Lincoln’s defiance of Chief Justice Taney during the Civil War. No contemporary textbook focuses on congressional challenges to the Court, pre- or post-Civil War, or on Theodore Roosevelt’s support for judicial recalls” (985-986). On Worcester v. Georgia, Donnelly asserts that “this episode depicts a powerful President staring down a powerless Court for an evil purpose. Although one contemporary textbook directly questions the legitimacy of President Jackson’s action from a constitutional perspective, most textbooks use this episode to stress the limits of the Court’s enforcement power. They convey the message that the Court would do the right thing, but it was powerless to do so. This constitutional narrative has not changed much since the 1950s, except insofar as accounts become more sympathetic to the displaced Native Americans in the 1960s and, especially, the 1970s. Again, the Court emerges as a heroic, if limited, institution” (988-989). Donnelly continues: “In the end, Chief Justice Marshall emerges as a defender of human rights, and the popular constitutionalist is allied with a power-hungry scoundrel and violent mob defiantly silencing the press and sending thousands of Native Americans to their deaths” (989).
With regard to President Jackson’s veto of the Second Bank of the United States, Donnelly suggests that a “strong constitutional account of Jackson’s veto is either altogether lost or (at least) underemphasized in our contemporary textbooks.” But out of the accounts that exist, Donnelly contends that “Some accounts do focus on Jackson’s constitutional claims, but the dominant theme is that he was attacking Eastern elites and defending ordinary citizens. Importantly, this tendency to focus on Jackson’s personal reasons for opposing the bank has been evident in every wave of textbooks analyzed for this study, from accounts of Jackson as ‘the professed foe of monopoly and privilege’ in the 1940s to later accounts focused on ‘Jackson’s monopoly and privilege’” (990). Frighteningly for Donnelly, “it is striking that these well-developed constitutional rationales only emerge in one widely used textbook in the 1960s and 1970s. This portrait is weakened in the 1980s edition of the textbook and disappears in all contemporary accounts.” With regard to FDR’s Court Packing, Donnelly suggests that “Roosevelt mostly emerges from this episode as an overly political President, attempting to subvert the independence of the Court.” Additionally, Donnelly writes that “several contemporary textbooks draw parallels between President Roosevelt’s actions and early twentieth century totalitarianism. The most striking feature of these accounts is the degree to which they dwell on the law/politics distinction and laud judicial independence (and supremacy) in the face of a resounding electoral mandate and a powerful President.” Donnelly notes that “early accounts also included criticisms of Roosevelt, but overall, they offered a more nuanced narrative of this constitutional showdown.” The “contemporary accounts delegitimize efforts by the executive and Congress to check the Court through the manipulation of the Court’s size—a power that the popularly elected branches had employed in the past and a potentially potent method of challenging a Court aligned against overwhelming public opinion,” according to Donnelly (993). “Contemporary high school textbooks are filled with passages that reinforce at least a moderate form of judicial supremacy through their (implicitly) critical accounts of powerful Presidents challenging either menacing, virtuous, or recalcitrant Courts. In the context of blunt institutional checks on the Court, popular constitutionalism is tied either to illegitimate acts by otherwise legitimate leaders (like Presidents Jefferson and Roosevelt) or immoral acts by historical villains (like President Jackson in Worcester)” (993-994).
With respect to Lincoln-Douglas debates in textbooks, Donnelly writes “they tend to discuss them in a manner that underemphasizes Lincoln’s constitutional attacks on Dred Scott and focus instead on the broader theme of slavery” (994). The effect of the focus never being on Lincoln in these texts, according to Donnelly, “significantly underemphasizes key constitutional exchanges between Lincoln and Douglas and ignores a key opportunity to teach students about legitimate constitutional interpretation outside of the Court through the actions of one of America’s acknowledged heroes—Abraham Lincoln” (995). Moreover, Donnelly suggests that “the judicial nomination process itself emerges as an essential focal point of social mobilization, with judicial nominations presented as key opportunities to bring about non-Article V constitutional change without resorting to blunt institutional checks. The portrayal of President Reagan appears to legitimate the judicial nomination process as a proper forum for shaping judicial outcomes and advancing non-Article V constitutional change.” Surprisingly for Donnelly, “our contemporary textbooks remain ambivalent about subtle checks on the Court through norm contestation” (997).
Donnelly concludes “The stories we tell our schoolchildren matter. They help set the terms of our constitutional culture—defining the proper scope of action for each constitutional actor, the underlying trust citizens place in each institution of government, and the acceptable modes of constitutional argumentation and adjudication. Today our public schools present a Court that is authoritative, if not omnipotent—mostly just, if not perpetually perfect. These stories help reinforce a constitutional culture that is largely deferential to the Court, limiting references to popular resistance to the Court and often linking such popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and ‘court-packing’), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations)” (999).
The biggest question I take away from Donnelly is this: why do we like including stories of subtle change with regard to the Court in our students’ textbooks? It seems like we have to explain our Constitutional history in this incremental way in order to dissuade any action that is “too sudden” because of some sort of fear that the Constitution could not withstand it. Favoring subtle change over blunt institutional challenges to the court preserves the Court’s insulated, perfect, stable function. There is this imaginative aspect of Constitutional storytelling which teaches us all the proper scope of our rights and where we stand in relation to our government. Being subjective about these stories is necessary; however, being subjective allows opportunity to abuse the responsibility of teaching individuals their rights. Telling these stories incorrectly or in a way which exalts the Court is a type of violence in Galtung’s sense of the term, “the cause of the difference between the potential and the actual, between what could have been and what is” (168). Students who are taught that the bottom line is that the Court is the final interpreter of the Constitution are cut off from participating in government in the way that our Founders expected them to and in a way that is considered engaged citizenship. These intentionally asymmetrical stories, this miseducation in civics classes, are the cause of the difference between what could have been and what is.
Donnelly notes that scholarship has just recently reopened on civics curricula and that we are not teaching a nuanced dynamic of judicial review. I was not even aware that I had not received a nuanced version until I was well into my undergraduate coursework in Political Science, which was when I did get a more comprehensive version for the first time. It does not seem as bold as a conspiracy to claim that the real effects of civics classes have created disincentives to actively participate as citizens to our fullest capacity. Civics classes that I took in middle school and high school described civic duties but never outlined politically creative ways that Constitutional change takes place outside of Article V procedures. My civics classes kept government shrouded in a certain amount of mystery by keeping it distant and flat. Knowing how much power the People actually have should not have been something that I was first introduced to at the university level, especially since university students outside of political science departments will still not be introduced to this truth. An attitude of judicial supremacy is taught in such a way that it seems factual, which sticks with students for their entire lives, when in reality judicial supremacy is merely an opinion. Textbooks which promote opinions as facts are violent to students—many of whom will not consider civic issues, especially with respect to the Court, once they graduate. So many conditions must be met to change our beliefs so the initial impression of the Supreme Court in civics classes is drastically important since the conditions for this change are minimally probable.
Is it moral that commerce has such an influence on the textbooks that will shape our students’ self-conception as citizens? I certainly do not think that business interests should be valued above our citizens’ sense of self. Is it violent to have such a reliance on textbooks since most civics teachers are not familiar enough with the material not to rely on them? Why is the Supreme Court portrayed as the ultimate moral institution of our government? We have so much trust in an institution that we do not know much about. Being so separated from the Court and being told centuries-worth of stories about the Court standing as a moral-safeguard and protector have gotten into our collective conscience. Since the accounts have changed over time from more nuanced to including a heavy focus on judicial supremacy, it is not like the textbook companies do not know about popular constitutionalism. The material that was once in textbooks has been removed over the years. Many of the textbooks implicitly delegitimize the legally-granted pathways for Congress to challenge the Court. Is the Court final or infallible? When a President is opposed to the Court, textbooks scrutinize his personal motives since he is a politician and the Court is politically insulated (in theory).
What is the danger in teaching our students the more comprehensive stories of the Constitution, beyond the strict legal understanding? Lawyers and the legal elite would be held more accountable and might not be so elite anymore. Law would be more accessible and there would be much work to be done. We might have to buy more textbooks or teach our teachers better. Maybe we would have to pay our teachers more. Do we fear a generation that is empowered enough to participate? I certainly hope not. Despite the faults of our civic education, citizen participation is fundamental in legitimizing our government. Do we fear political creativity and extralegal pathways to create change in our law? Why are we editing out the important dynamics? Maybe we have lost sight of our goal. The goal of civics classes is to embolden our students and call them to participate but we seem to be doing the exact opposite by painting the picture of a perfect Court which makes all of the final calls. FDR’s court-packing plan is criticized as overly political and even totalitarian. Blunt checks on the Court like this one are always portrayed as either illegitimate or immoral. Even our indisputable American hero, Abraham Lincoln, participated in challenging the Court during the Lincoln-Douglas debates but this is washed-over in our textbooks. Perfect chances like this one to show that everyone does not have to be and is not supposed to be deferential to the Court are passed up or have been erased and it is hurting the quality of our citizens.