For our second week of federalism month, we had the privilege of interviewing Rev. Christopher Dreisbach and hear his thoughts on constitutional literacy. This interview was conducted by Samuel Hill, our ambassador at the Federalism Index Project.
Samuel Hill: Hello, my name is Samuel Hill and I am here with Dr. Christopher Dreisbach for federalism month. Thank you for being with us today, Christopher.
Christopher Dreisbach: Glad to be here.
SH: Alright. So before we get started, could you introduce yourself to us? Tell us a little about who you are and what you do.
CD: Sure. I'm full time at Johns Hopkins University. Director of the Organizational Leadership Master's Degree having moved there fairly recently from the Division of Public Safety Leadership, where I was a director. This was at another school at Hopkins that I think will be somewhat relevant to our conversation about the Constitution.
I've been teaching for almost 40 years. In September I'll celebrate my 40th anniversary. I got my degrees in philosophy — my master's and PhD in philosophy at Hopkins. I never really got too far away from Hopkins. I also am permanent part-time on a faculty at St. Mary's Seminary in Baltimore where I teach moral and systematic theology; and, I am an episcopal priest at a church called Old St. Paul's in Baltimore. That's pretty much what I do.
SH: Well, thank you. It's very nice to be with you today, Chris. We here at the Center for Constitutional Studies first heard about you when we encountered your book, Constitutional Literacy: A Twenty-First Century Imperative. Could you tell us a little about that book and where it came from?
CD: Yeah, what got me interested in constitutional literacy in the first place, and what led to this book eventually, was an assignment back in 2000 when my boss (at the time at the Division of Public Safety Leadership) asked me to design a course on ethics and the Constitution for our students, almost all of whom were police. My boss was a retired cop as well and so he took very personally this idea that even though police take an oath to the Constitution — they don't really get much of an education on it, for the most part.
Most academies back in 2000, the extent of their constitutional training was learning about a few court cases that would affect their practice directly. So he asked me to design an ethics course involving the Constitution as part of the professional obligations as a cop. I assumed that I could take my, at that time, 20 years worth of teaching ethics and the Constitution and just put them together over a weekend and come up with a course.
Well, I was kind of surprised by my own illiteracy. I mean I think I got an A in my civics class back in high school in the 70s, but, boy, I did not know the Constitution. I worked very hard to develop this — the hardest part was bringing myself up to a certain level of literacy, given how illiterate I was — so I worked diligently, maybe that's a better word to put it, to produce the course and I discovered over time how many people, who've taken an oath to the Constitution, clearly don't know it and this became evident in their invoking it. Also, we give them a test at the very beginning, something they weren't graded on, but I just wanted to see how much about the constitution they knew and it was a little startling how little they knew.
Then I started expanding my constitutional literacy radar and I would hear public officials all the time claiming to invoke the Constitution when they weren't. Frequently they were invoking the Declaration of Independence. Then I started to think how many aspects of our lives are governed by the Constitution in ways that are fairly profound even though we don't realize it. So at that point I started paying much more attention to this notion of the role of the Constitution in American life and the distance between what we thought we knew about it and what's probably the case.
At some point, an editor friend of mine, whom I had done another text with, asked if I had any books in mind, then I mentioned this one and she said, "Yeah, write that!" And so, out came the book.
SH: I've been reading it. It's really quite a wonderful book and it does cover some of the things that you've talked about. Your introduction goes over a number of cases of public officials from the very, very top to, you know, the very, very local who invoke the Constitution — and that's a word you like to use is 'to invoke it' — without having a really good understanding of that.
Since we are talking here about constitutional literacy this week, the level of literacy has really come home to us. Now you give what you call a working definition of constitutional literacy in your book. You say, "It is knowledge of the Constitution sufficient to invoke it properly." Can you explain that for us, please?
CD: Yeah, "knowledge of the Constitution sufficient to invoke it properly" means, I think, that we are obliged at any point where we invoke the Constitution to know it well enough that our invoking of it isn't inauthentic or false, perhaps. You'll probably get to this before we finish — I think there are various levels of invoking it and therefore various levels of required literacy. So that a person who is voting, for example, is invoking a constitutional right.
Now it's interesting that the Constitution itself doesn't specifically lay out a right to vote, but legislation that permits the voting obviously comes out of the Constitution conferring powers on certain people to issue those rights.
When you hear in public conversation, either very casual conversation or say a letter to the editor or something like that, frequently you'll find people invoking the Constitution to back up their claim of a certain right or their claim of a certain wrong — I'm using the term ambiguously there — or their suspicious that somehow a constitutional law has been broken or something like that.
Now the ordinary citizen is not so burdened by the obligation to constitutional literacy as say a Supreme Court Justice or even as anybody who has taken an oath to the Constitution. And so, one of the things I wanted to suggest was that literacy doesn't come in 'one-size only'. The requirement for literacy matches one's attempt to invoke it. And so the ordinary citizen, probably, is not as engaged in invoking it as, say, a Supreme Court Justice or even a cop. So, I meant my invoking it as any time one either says something or acts in such a way that the Constitution is the premise for it.
SH: So you talk about different levels of constitutional literacy based upon how much, or what your role is in invoking it. In the book you describe eight levels of constitutional literacy and you describe them pretty thoroughly. Could you give us a rundown of the major levels? What are the major benchmarks for different groups or for different activities?
CD: Yeah. Forgive me for not having ever memorized that list. I'm going to have to just look at that. This was more my initial effort. I initially kind of refined it a little bit, but this will do the trick for our conversation.
So the eight levels of literacy. The most basic one, it seems to me, is the ability to distinguish the Constitution from other documents. At this point it's enough, for example, to know the Constitution is not the Declaration of Independence; it's not the Gettysburg Address, so forth and so on. The second level is knowledge of the basic history and basic anatomy of the Constitution. When people begin to talk about that history they sometimes get it wrong. For example, the primary purpose of the Constitution was to develop a national defense and a national tax system and it was meant to remedy some of the short comings of the Articles of Confederation, which had given the states a lot of autonomy and power over themselves, but hadn't really brought that nation together in a meaningful, national way.
The third level is knowledge of certain significant details from the articles and amendments. I think we're at the point where someone claims to know that the Constitution says such and such that they ought to be able to back that up by pointing to the Constitution. I don't mean to pick on low-hanging fruit here, but I'm going to do it anyway. When the president says, 'I can do anything I want under the Constitution he's simply wrong and one ought to read Article 2 and see just what the president can and can't do. This is also always a problem, of course, in presidential elections when all of the candidates are making promises that the Constitution simply doesn't allow them to fulfill.
The fourth of the eight levels is knowledge of most details of each article and amendment and the history surrounding its creation and ratification. At this point, I think, we leave behind the ordinary citizen, who is not otherwise engaged all the time in constitutional matters, but we include, oh say, opinion leaders; TV spokespeople for example; or editors who will make a point of citing the Constitution to support a particular political view and it's important that they know what they're talking about in the detail.
SH: So for the fifth level would you be talking about like the commentators on Fox, CNN, who sit in the chair and tell you this is what this means.
CD: Yes, I would be talking about those kinds of commentators. Right. So a Rush Limbaugh or a Don Lemon, who at the point that they are suggesting either the need to impose some sort of constitutional principle or they are criticizing someone else for having violated it. It seems to me, they should have detailed knowledge to back up that position. And sometimes, even at that level, if you've read the Constitution carefully, you've really done your historical homework. You'll raise an eyebrow at the very least and say 'I don't think that's true'.
And here — I'm going to make this distinction again — I want to distinguish between people who know the Constitution well but disagree on its interpretation and people who simply have some sort of axe to grind or some sort of agenda and will pull the Constitution out of the air incorrectly to back it up. I think that's a very important difference. So someone like the Justice Alito has a very conservative interpretation of the Constitution, but he knows the Constitution. And so, when he and Justice Breyer disagree that's not a sign of illiteracy. That's a sign of different fundamentals.
The fifth of the eight is familiarity with the most important arguments for the elements of the Constitution. And here, I think, we're now really getting into scholars of the Constitution. Number six is familiarity with the most famous court cases. There, of course, its most important when one wants to cite a court case as precedent for some sort of constitutional position.
Seven is familiarity with key disagreements about the nature of laws, rights, and justice and which theories are reflected in the Constitution as opposed, for example, to the Declaration. This becomes important when we want to make certain claims about rights as if the Constitution supported them or we want to make certain claims about a law. Because, here again, I think the mistake is to cite the wrong theory. There are very specific theories of rights, justice, and laws and the Constitution and Declaration have very different versions of those theories underlining them when compared to each other. So, that people who are, as scholars, responsible for moving forward the constitutional health of the country, seems to me, ought to be very clear on those distinctions.
And then finally, level eight is familiarity with the more arcane debates about, for example, the history and nature of constitutional interpretation. At that point, we're talking about the Supreme Court Justices, primarily.
SH: So one of the things that we do at the Center for the Federalism Index Project, and my research in particular, is on constitutional knowledge. It's a strange thing that's going on. There was this surge of interest in educating about civics. And so what we're finding at the sub-college level there's actually been quite an increase in teaching about federalism and about other issues.
CD: Oh that's good news.
SH: It's qualified good news.
CD: Oh okay.
SH: The ANES (the American National Election Studies) they have been asking this question since about 1964, "How many branches of government are there?" And the average across — what is it? — 50 years, I think now, is 30% percent of people can name all three of our branches of government.
CD: Oh my! Yes. Okay.
SH: And then Justice O'Connor in her work on ICivics, over the last few years, has also found some of these funny conflicting things where they can name a branch of government, probably can't tell you what it actually does or where in the Constitution it's coming from.
Are we educating for literacy? In some ways we absolutely are, but much like your case — and the case was the same with me as I remember having things about the Constitution, but when I got to be, you know, in my 30s and really started thinking about it I was like 'I don't actually remember all that much.' And I would make some of these same mistakes you're talking about and I would claim something and someone would come back at me and I'd have to go look it up and 'Oh! What do you know? I'm wrong' and so that has informed a lot of my education. But yeah, it seems like a lot of our people are struggling to acquire even a basic understanding.
CD: I think you're right about that struggle to acquire a basic understanding, and I want to be fair here, and I'll say this again, that had I not been assigned the task of creating a course on this, I think I'd be in the same boat right now. Frankly, I would just harbor my political biases and assume they were backed up by the Constitution. And unless anyone challenged me, I wouldn't have picked up the Constitution and read it to double-check. I don't mean to take a 'holier than thou' position here. I get it. I get that people who are not otherwise engaged in the Constitution proper have other things to do. I don't want to come across as a snob or a 'holier than thou' cause I understand that. I think it's too bad and that's part of the point of the book. But I would not have thought it was too bad if I hadn't been assigned the task of designing the course. I would've never given it much thought.
SH: So suddenly there's a need and everyone's flipping through their Constitution. There have been people who make the argument that we spent centuries without a particularly constitutionally literate population and we did fine. Now your book seems to argue against that. Why do you think that that's the case?
CD: Okay, so the question is why do I think we really need constitutional literacy when the world has done fine without it? Let me first of all agree with that point. I mean, even among cops — cops can go 35 years do their job very well, be celebrated at their retirement quite properly and not once have picked up a Constitution in their entire career.
I would answer the question first of all by suggesting the historical fact that literacy has always been an advantage over illiteracy. So, even if people could get along fine being illiterate — being literate made a positive difference, number one. Number two, it's merely one thing to express one's own opinions and accept the reasonability or rationality of such an opinion. It's another to say 'and my opinion is grounded in *fill in the blank with a certain document*. The Bible says..., the Constitution says..., our state code says..., our federal code says... and if they're wrong, if the document simply doesn't say that, and we're not arguing about interpretation, it's just not there — then, it seems to me, you've uttered a falsehood.
Now that's not the same necessarily as lying because if you really believe what you're saying than that's not lying, but you're still perpetrating a falsehood. So, to the extent that somebody wants the Constitution — maybe not want, but even if somebody presents the Constitution — to the extent that they present the Constitution as the foundation of their proposition it seems to me that they're obliged to know it.
So can the world get by on illiteracy? Sure. We've done it for the history of the human race. Are we better off with literacy, especially when it's literacy about the documents we're proffering to invoke? Yeah, I think it's much better.
SH: It's a question of trajectories I propose. Do we want to be going up a little? Or going up a little more?
CD: Yeah, fair enough.
SH: You talked about this perpetuating a falsehood. Now is that related to your moral verses practical value of literacy? Or would you classify that as something separate?
CD: No. I think it's a piece of it. And, it's interesting that you should bring that up about the difference between the practical and moral values of literacy. The reason that it's interesting to me is, cause I have to confess that even as a I began writing the book, I was seeing this as an exercise of ethics, primarily, and it donned on me that the very things I was saying suggested a distinction between the practical applications of the Constitution, and invoking it, and the moral implications.
When, for example, a legislature is sitting down to propose the enactment of a certain law, the legislature should know what the scope and limits of that enactment can be under the Constitution. I don't know if that knowledge is necessarily a moral concern. Maybe in broader terms it is. The person made a promise to be a good legislature. But at this moment it's really a practical question. Does the Constitution allow me to do this? Yes or no? Because, if the answer is no, I'm not going to any farther with it. At that point, I don't think it's really a moral question. It's just more of a practical question.
At the point I arrived at the book where I realized that I had to pull back. It took a little more time to produce that chapter than I'd anticipated because I hadn't been very careful about the distinction myself. So I do wanna make that case that when I'm talking about constitutional literacy — even if in the broad terms I'm proposing it as a moral obligation — I want to suggest that there are certain values of that literacy that really are much more practical than they are morally significant.
SH: It almost sounds — the way you describe that practical value of, say the legislature sitting down — it almost sounds like taking the moment to look at the 9th or 10th amendment and internalize the message of 'You don't have all the power. Okay, well now which powers do I have' and just make a very real decision of 'Do I or don't I have the legitimacy, the authority to do this?'
CD: Yes, that point about sitting down and looking at the Ninth and Tenth Amendments is an excellent point and, of course, very much plays into the whole question of federalism. Part of the question that the Constitution could answer is that. What are the federal government's powers, these would be the states, in terms of what the Constitution has said? Now, at this point, obviously a fundamental debate in our political lives of this country goes all the way back to the beginning. Even though Washington had begged us not to split into parties — by John Adams we had parties.
And so, on the Adam's side they called themselves federalists, but many of them, I think, were actually more inclined to believe that the nation is the fundamental political unit and the states are subordinate to it. Which really isn't federalism. It's sort of internal nationalism. And then, of course, the other party, that was called the Democratic-Republican party at the time — due to Jefferson most notably — but it was states' rights people and they believed the state was the fundamental political unit and that the nation was there to serve the interests of the states and out of this tension comes federalism. What's interesting about that attempt to meet both sides of the argument is how broad it is.
So one can still insist on the priority of the nation over the states and claim to be federalist and one can claim that the states sovereignty has priority over national interest and can still claim to be a federalist. I mean, it's interesting that most so-called anti-federalists weren't anti-federalist. They just didn't grab the title in time. The so-called federalists grabbed the title before the other side had a chance to name itself.
SH: First to press, I guess.
CD: Yes. And so, even those who take a very close look at the Ninth and Tenth Amendments and have absorbed the content and the potential meanings may still end up disagreeing with each other, but at least they've made the effort and much of that effort is practical — not just moral, but practical.
SH: So would you argue that a practical understanding or practical appreciation of constitutional literacy is more valuable than say a moral view or a moral perspective for most people?
CD: I think it might be more of an inducement to make that distinction because once you put a moral color to the importance of pursuing the Constitution and constitutional literacy than, it seems me, you're kind of putting people on the spot. When you say to somebody, in purely practical terms, "Look at what you could gain by constitutional literacy" I think it's less threatening and less controversial. I'm not sure I want to make too white or black a distinction because, there is always, I think, a moral obligation to do our best: to do our best as citizens, to do our best if we're sworn officers in our profession having taken the oath. While we might encourage constitutional literacy by referring to its practical value first, because it'll be less controversial and less demanding, I don't want to say it's completely detached from the moral value.
SH: Perhaps this is a milk and a meat issue where, you know, if you're just walking in the door at a level one or a two, it's easier to encourage someone to internalize this, to learn about this, if we can show them there's value here. And then as they begin to recognize it, we can teach them more about the why and the deeper meanings and philosophies.
CD: Yes, I like that point about the milk and the meat. I mean, one of the interesting things I have found working with the police on this is, although I will have mentioned this up front, the moral implications of having taken an oath to the Constitution and then living up to that oath. For the better part of our conversation, we just get into really neat, historical conversations. We talk about court cases and how interesting the reasoning was in them and so, the real enthusiasm in them, I think in the conversation, comes from a more practical approach. Even if the moral imperatives are lurking in the background, the real excitement comes from just learning more and saying "Gee! I didn't know that. Wow, that's pretty cool!" Before you know it, they're starting to do the research on their own. They're picking up on constitutional history and stuff. So, at the very least, I'm emphasizing the practical early on that can make constitutional literacy more attractive then if we impose a heavy morality on it. So the milk and meat analogy that was neat. That was good.
SH: Thank you. For the last few minutes, I think I want to look at some big picture questions here. In your research, and in your writing, and in your reading — this also includes all your time working in theology and in ethics — do you have an idea of how we got here where so few of us understand it and so few of us value that understand to remedy that? How did we get here?
CD: Well I think that the first step is just a historical distance from the roots. I would imagine that many a thinker, shortly after the ratification of the Constitution and for some years afterward, paid very close attention to what was happening to it as court cases arose or questions over legislation arose. But, in time, for most of us, it just wasn't important anymore and unless a teacher said to us it's important that you do this — I don't even think it'd occur to us to do it. We've got plenty of other life to live and unless our opinions and lives are challenged, there's not a lot of good reason to go back to the Constitution and check it.
Now, in moments like the Civil Rights era, you suddenly had constitutional issues front and center again. I suspect that got a lot more people interested in looking into this. But, then as that began to die down, I suspect people, who are not otherwise committed to the constitutional scholarship began slipping away again, like "Gee! I got other things to do. I have a job." And then voting is sort of "I'll take my fifteen minutes and go vote," but I think very few of us pause to ask what are the constitutional implications of what I'm about to do.
So I don't blame the masses for having other things to do. I just want to say to them you'd be even better off — you may be well off, but you'd be even better off if you took a look at this thing and got to know it a little better. I think we got here in the first place simply because we didn't have to. I may put too much of a premium on education cause I'm married to an educator and I'm one myself, but I do think that's the best place to start. Get the kids interested really early on and not simply, perhaps this was your civics class too, but for mine it was mostly memorization. What I'd like to do is get the kids engaged in critical thought about the Constitution and they can handle it. You have to use the language of a five year old or a six year old, but they like that kind of stuff. You say, "Is the president a king?" and then have that conversation.
I think, and maybe I'm anticipating the question you're about to ask, the first solution is education. It's not the only one. It's the first one and it may also be your answer to your question, 'How did we get here?' because I'm not sure education made enough of an effort to keep constitutional literacy on the front burner.
SH: Sandra Day O'Connor, Justice O'Connor, has just started her ICivics program a number of years ago and there are a lot of people who've begun these educational initiatives. Justice O'Connor in particular noted that, I think it was in 2011, they issued a report that education, college or otherwise, needs to make constitutional literacy, civic literacy and education, central and not peripheral to their curriculum — to make it integral as opposed to making it just a box off on the side that you check off by the year's end.
CD: Yes, that idea of making constitutional literacy central to education sits very well with me. I'm all for it and I think it can be done. You have all these movements in the history of education in this country, things like writing across the curriculum or critical thinking across the curriculum where at one time that topic may have been the province of one particular academic area or department. We began to see the value of being able to write about anything, about any discipline, to think critically about any discipline. And so making room for constitutional literacy, it seems to me, is the proper project and I think it's quite doable frankly.
We don't have to overwhelm, we can simply agree that in kindergarten the children will be introduced for the first time and in a way that gets them curious. Then, overtime, we keep coming back to it. I'd like to see more of it in public rhetoric.
I had done an op-ed piece a few years ago, for the Baltimore Sun, in which I argue that police are in a really neat position that we haven't taken advantage of to serve as sort of ministers to the Constitution. That, if they could get the proper training from the academy onward, then they would be in a position to have conversations with the citizenry about the Constitution — and I realize there are moments when they can't take the time to do that if they're pursuing a murderer or something — but how frequently are they stopping a motorist or a suspect in a very casual way. The suspect might say something like "I've got my constitutional rights!" Well, suppose the police officer were there to say, "Let's talk about that. Why do you think you have that right and where might it come from?"
So, they'd be in a position to educate and over time the citizenry would come to see them in that role. One might come to stop a cop on the street and say "Excuse me, I have this constitutional question and I was wondering if you could help me with it?" That would really put this front and center.
SH: It'd certainly add a different dynamic to the movies that we always see about somebody yelling at the police for being unconstitutional and perhaps bring us closer to the old police officer where they were seen as a community resource as opposed to an outside invader.
CD: Absolutely! This idea of the police officer being an invader rather than a community resource is so important. I mean, this is a whole other topic, I just had an interview yesterday about police ethics so it's sort of in my blood. Imagine how much good that would do if we went back to community policing and you had the local beat-cop and he was a neighbor and a friend — or she was a neighbor and a friend. Imagine if that cop was well educated on the Constitution and well educated on how to talk to people about the Constitution. That guy would just be a marvelous resource, it seems to me, and even if there was a lot of political disagreement still at least it would be an informed disagreement.
SH: Indeed. Alright, thank you so much, Chris. I think I'm going to call it there. We are running up on the hour. Thank you so much. I really appreciated this. This was a fascinating discussion and I look forward to exploring it a little more.