Teaching Innovations

Sins of Omission: Thoughts on Teaching the Constitution

Joshua A. Newberg, March 1989

Editor's Note: This month's Teaching Innovations article is the last article submitted by Contributing Editors Jeanette Lauer and Millie Alpern. They have worked tirelessly to promote excellence in teaching through the solicitation and editing of the many quality articles that, under their editing guidance, have appeared in Perspectives over the last nine years. Their experiences and thoughts on the state of teaching history today appeared in the December 1988 issue of Perspectives, page 15. Their service and dedication to the profession will be missed.

Each year, thousands of history teachers introduce their students to the Constitution. For the vast majority of Americans, the treatment of the subject in a survey history course will be the one opportunity they will have to study our fundamental law. For teachers, then, constitutional education presents a daunting and profound challenge. Nowhere in the history survey curriculum is it more apparent that teaching history is far more than imparting facts; it is, at its best, providing students with the critical and empirical tools of active citizenship in a democracy.

Just as most teachers would almost certainly agree that teaching the Constitution is of fundamental importance, most would also agree that current approaches to constitutional education generally leave much to be desired. The most obvious and prevalent problem is, of course, the pressure of time, and the superficiality which results from that pressure. When one is given only two semesters in which to ground students in the social, political, economic, and cultural history of a great nation, it is very difficult to give the Constitution the time it merits and requires.

Another serious problem is the tendency in survey history courses to teach every major topic as if it is of roughly equal weight to every other topic in the course. Textbooks often reinforce this process of homogenization. And teachers are understandably hesitant to tell their students that this week's topic is substantially more important than last week's topic, even if this week's topic happens to be the Constitution.

A third major problem in introductory constitutional education is that the "coverage" of the Constitution tends to be oddly ahistorical. The study of the Constitution generally begins with the Articles of Confederation and perhaps a passing mention of the influence of the European Enlightenment. After a discussion of the 1787 Convention, the study of constitutional history generally comes to an abrupt end with ratification, although in some courses the topic may make a few brief and disjointed subsequent reappearances. Unfortunately, such an approach has the effect of severing the Constitution from its deep and significant roots in the 2,000-year history of classical and European constitutionalism, and from the 150-year history of colonial constitutional evolution in British North America, which preceded the Constitution of 1787.

Given these and other common pitfalls of introductory constitutional education, it may be time to rethink our approach to teaching the Constitution. What follows, therefore, are a few fundamental points of emphasis which should be useful in making the most of the short time most teachers will have in which to introduce students to what we hope will be a lifetime of thinking about the Constitution. First, it is important to look at the Constitution as more than a legal document. The Constitution has to be studied, even at the introductory level, as an example of constitutionalism as a political theory, and as one part of a complex political culture. A second and closely related concern is that we make every effort to place the Constitution in the broadest possible historical context; both European and American. It is also crucial to emphasize that the Constitution is neither fixed nor static, but rather that it is continually being rewritten within a structure shaped by tradition. Students must, therefore, understand the nature of constitutional development, particularly the amendment process and the nature of Supreme Court adjudication.

What Is a Constitution?

When asked what the U.S. Constitution is, most students can come up with an answer that is not too far from the mark. But when asked what a "constitution" is, many students, and indeed most adults, will be hard pressed to answer. Yet this understanding is central to an appreciation of what makes our system (and those modelled on our system) different from other political systems which exist today or which have come before our own. Students should know what it means to say that one country has a constitution, while another one does not. And, on a more difficult level of abstraction, they must understand how it can be that many countries (the Soviet Union, for example) have written constitutions, but are not fundamentally "constitutional systems" according to our use of the term.

It is helpful to begin with the understanding that there are at least two quite different and instructive meanings attached to the word "constitution." The older and more fundamental understanding of the word "constitution" is as a generic term for all the rules of the political game in a society. Employing this usage, any society—even a dictatorship or monarchy—may be described as having a constitution, just as a republic has a constitution. Under a despotic or autocratic "constitution," the rules of the political game may concentrate all power in the hands of a single person, family or party; under a republican constitution, the people are sovereign. The point is that "constitution" used in this sense simply describes the political reality, what ever it may be. Our current usage of the term, by contrast, describes our political reality, but it also describes a theory of government and a set of political aspirations.

For Americans, constitutional government means government limited by fundamental law. Our fundamental law is in written form and it is construed definitively, since Marbury v. Madison, by the Supreme Court. In Britain, which is also clearly a constitutional system, their fundamental "constitutional" law is unwritten and construed definitively by Parliament, but it still set limits on the authority of the government. Other countries, such as the Soviet Republics, have written constitutions, but are not "constitutional" regimes because the will of the ruling party takes precedence over what purports to be fundamental law. Applying the first usage of the term "constitution," the Soviet Union has a totalitarian constitution. A totalitarian constitution, according to our second usage of the term "constitution" is, of course, no constitution at all. Any nation can draft a constitution. The test of whether or not a given country is a constitutional system is whether the constitution is observed, even when those in power wish to ignore it.

Although we generally use the term "constitution" to refer to our system of government limited by fundamental law, it is also instructive to apply the first usage of the term in analyzing the American constitutional system. Any student of the Constitution should understand that in addition to the written document, we have a vast and complex "unwritten" constitution of judicial decisions and political custom. This unwritten constitution is just as important as the written constitution. Indeed, it is the political culture which determines whether the written constitution will be enforced or will languish as a dead letter. The most fundamental example of a constitutional rule which does not appear in the Constitution is the practice of judicial review alluded to above. Acquiescence to judicial invalidation of legislation and/or administrative actions may stir periodic dissatisfaction, but through long-standing agreement and practice it has effectively become part of our constitutional system.

Another example (of current interest) of this unwritten constitution is the application of the "advice and consent" clause governing congressional consideration of presidential appointments to the Supreme Court. "Advice and consent" has come to mean that Congress is expected to approve the president's Supreme Court nominees unless they are incompetent or egregiously flawed. While some eminent commentators have argued persuasively that it is perfectly legitimate for Congress to evaluate such nominees according to ideological or policy criteria, such evaluation has come to be viewed by many as illegitimate. Whichever position one holds on the merits of the question, it is nevertheless clear that substantial deference to the president's selections has become one of the rules of the political game—part of the unwritten constitution.

A third illuminating example of the unwritten constitution is our system of political parties. There is not textual basis for the enormous role of the two major parties. Indeed, there is evidence that some of the framers opposed the very idea of organized political "factions" as they were called in the late eighteenth century. Nonetheless, the party system has over time become an integral part of our constitutional regime.

Teaching these two usages of the term "constitution" provides students with two valuable levels of analysis. The broader usage reinforces the understanding that our constitutional system is much more than the words written in 1787. The second, narrower usage, highlights the fact that our written constitution embodies a specific theory of limited government. This fundamentally comparative approach to the study of constitutions and constitutionalism should give students a much better sense of what sets our system apart from so many other systems of government.

Placing the Constitution in Historical Context

It is common to refer to the Constitution of 1787 as a political innovation, a "great experiment." While there is substantial truth to this view, it is incomplete and rather ahistorical. In fact, the Constitution's antecedents are at least as ancient as the Roman Republic. It is clear, moreover, that the framers conceived the Constitution with that tradition in mind. The name of one of our two great legislative bodies, for example, is borrowed from the Roman "Senate." The awareness and influence of classical political thought is even more apparent in the historical references which abound in the first (and still the most significant) commentary on the Constitution, The Federalist. Indeed the very pseudonym under which The Federalist essays were published, "Publius" serves as an evocation of Rome. To Rome, most fundamentally, we trace what C. L. McIlwaine aptly phrased in his Constitutionalism: Ancient and Modern: "...the central political principle of...Roman jurisprudence...that the people (are) the ultimate source of all legitimate authority in a state." This concept of political legitimacy being based on the sovereignty of the people manifested in fundamental law survived the collapse of the Roman Republic and continued to influence the political thought of medieval and early modern Europe, most notably in England, the single most fertile source of our legal tradition. And from England it was transplanted to become a part of the American political vocabulary.

To draw the connection between our system and this European tradition is not to say that Rome or medieval Europe were democratic or operationally constitutional in the sense that our system is today. In point of historical fact these societies rather consistently failed to live up to the ideals proclaimed in the most forward—thinking Roman jurisprudence or in the English writings of Bracton, Coke, or Locke. But that is not reason to ignore the long history of these constitutional ideals. Many teachers and scholars are quick to point out dismissively how "undemocratic," for example, ancient Athens or Rome were. (Justice Marshall, in a speech, emphasized the relatively undemocratic political community of our own early republic.) While these are important and historically accurate points, it is essential that we do not permit this understanding to obscure the contributions which these earlier societies made to the rights and freedoms we enjoy today. Aspirations and ideas matter, even when they are unrealized within a specific time frame. Unless the aspiration exists in the political theory of a people, there is no foundation on which to base the construction of an institutional political structure through which those stated ideals can be subsequently realized. Indeed, it should only heighten and enrich our appreciation of our own constitutional system to understand that it is the product of two millennia of painful and bloody evolution. (It should also provide us with a sobering but encouraging perspective as we look impatiently for rapid constitutional evolution among our friends and allies in the developing nations.)

Also important, and not generally emphasized in constitutional education, is our own indigenous, colonial constitutional tradition. As is well known, the British North American colonies functioned as political entities for 150 years before the United States was established as a sovereign nation. During that period, direct British supervision was, for the most part, minimal. As significant as the European tradition was for our constitutional development, we can also trace the evolution of an American constitutional tradition which substantially predates the Constitution of 1787.

One can find colonial antecedents of the Constitution, for example, in the Massachusetts Body of Liberties, adopted by the Massachusetts Bay Colony in the 1640s. That document expressly guaranteed the protection of "life, liberty and estate," except when taken under the law. It also promised a right to a speedy trial, limited cruel and unusual punishment, and barred double jeopardy. Somewhat ahead of its time, the Body of Liberties also extended the equal protection of the laws to all citizens and severely restricted the holding of slaves.

In addition to such written precursors of the Constitution, our present system was foreshadowed in the political practice and structure of colonial government. As several scholars have pointed out, the tension between royal governors and elected legislatures probably contributed to the development of the modern doctrine of separation of powers. The concept of judicial review, moreover, was anticipated in the relationship between the colonial legislatures and the Privy Council in Britain. As with our Supreme Court, the Privy Council had the power to invalidate the enactments of the colonial legislatures.

While it is, of course, impossible to expand survey coverage of the Constitution to include a detailed examination of these constitutional traditions, there is no doubt that more can be done to place the Constitution in its historical context. In programs where a European history or Western civilization course precedes the U.S. history course, departments might discuss ways of anticipating the study of the Constitution by emphasizing the European historical foundation. When U.S. history is the only history offered, it is that much more important that students understand that their Constitution is the product of a great tradition. The economist John Maynard Keynes once said, "I see so far only because I stand on the shoulders of giants." James Madison might have said the very same thing.

The Constitution Is Still Being Written

In this period of speeches and writings commentating on the adoption and ratification of the Constitution, it has become a cliche to declare that the Constitution is a "living" document. As with many cliches, there is much truth in this one. But what is the reality behind the slogan? What does it mean to say that the Constitution is a "living" document?

On the simplest level, the Constitution lives in the sense that it has not been superceded, part and parcel, by another Constitution since its adoption in 1789. That in itself is significant. For although ours is a relatively young nation when compared, for example, to France, Italy or China, our political structure is one of the oldest currently in existence. Italy and China have fundamentally changed their political regimes in the last forty years; France's latest constitution is less than thirty years old. The process of abolishing one constitution and adopting another is, as well we know, a traumatic and often violent change for a nation. And if it occurs with some frequency, it may be evidence of profound political and social dysfunction.

The endurance of our constitutional structure by contrast, through numerous periods of crisis including a civil war, is indicative of a relatively substantial political consensus and of the great skill of the original framers. That skill is evident not only in what the framers chose to include in the Constitution, but also in what they chose to exclude. The Constitution is a relatively short outline of a governmental structure and a number of principles which inform the operation of that structure. It is not a detailed legal code in the European civil law tradition. Even in the words which are included, there are great ambiguities and frustrating silences. That, as many have argued perceptively, is part of the reason the Constitution survives. The guidelines and the structures persist, but the silences leave room for adaptation and innovation. No detailed code of political conduct would have stood 200 years of political conflict. But principles and concepts, such as federalism and separation of powers, have survived.

The Constitution is also a "living" document in the sense that it is continuously being rewritten. This rewriting is incremental—often imperceptible—and it is a process which takes place with constant reference to tradition. But is, nonetheless, a rewriting of the Constitution. The rarely employed, long-term mechanism for this rewriting is the formal amendment process. But for most constitutional questions, the day-to-day mechanism for this process of revision is Supreme Court adjudication of specific legal disputes which have raised constitutional issues. At least since the ratification of the Bill of Rights in 1791, the decisions of the Supreme Court have been of far greater practical significance that any of the amendments. (Even the enormously important Fourteenth Amendment owes its transforming influence to subsequent judicial interpretation.) Although the impact of the Court has varied over time, the great architect of the institution, former Chief Justice John Marshall, substantially defined its role in the first decades of the nineteenth century. He approached the Constitution as a broad statement of principles which were to be brought to bear in deciding new and unanticipated problems. The question for the Court, since Marshall, has not generally been, "How would the framers have decided this specific issue?" Rather the question has been, "What answer to this specific legal question will be consistent with the great principles upon which this country was founded?" This latter formulation of the inquiry has allowed the Supreme Court to be an engine for change, some of which we are proud of; some of which we would just as soon forget. The essential point, however, is that the Constitution is not and has not been static. We need only compare the "Constitutions" in the years 1791, 1857, 1896, 1935, 1954, 1969, and 1989 to see how dramatic the "rewriting" has been.

In the incremental process of revision we see the flexibility and continuity of our constitutional system. Some of us are uncomfortable with the thought of living under a "200-year-old document." Others are uncomfortable with the readiness with which the Court sometimes "discovers" what appear to be new rights and obligation in that document. What our system has evolved is a compromise between constitutional continuity and change. It may create some political tension. But no system can survive if it dispenses either with tradition or with the capacity for change.

At the conclusion of the 1787 convention, Benjamin Franklin is said to have advised, in what is now a famous turn of a phrase, "Gentlemen, you have a republic, if you can keep it." Teachers have an absolutely pivotal role in determining whether or not we shall be able to keep it. We must, therefore, rededicate ourselves to fostering a kind of constitutional "literacy" which allows students to distinguish legitimate constitutional disagreement from convenient constitutional "mythology." The challenges to our system will only increase as the world becomes more economically competitive and interdependent; as technology defies legal categorization and regulation; as we absorb hundred of thousands of immigrants each year; as some within one branch of government occasionally resist their obligation to cooperate with other branches of government. Only with an informed and constitutionally sophisticated citizenry can our institutions endure and adapt in ways which are consistent with the great ideas upon which our country was founded.

—Joshua Newberg has taught history at the secondary school level and at the Philadelphia College of Textiles. He is currently a third-year law student at the University of Pennsylvania where he is also associate editor of the Law Review.