Dreisbach (2016) - Constitutional Literacy PDF

CONSTITUTIONAL
LITERACY
A Twenty-First Century Imperative
Christopher Dreisbach
Constitutional Literacy
Constitutional
Literacy
A Twenty-First Century Imperative
Johns Hopkins University
Baltimore, Maryland, USA
ISBN 978-1-137-56798-7 ISBN 978-1-137-56799-4 (eBook)

DOI 10.1057/978-1-137-56799-4
Library of Congress Control Number: 2016950640
© The Editor(s) (if applicable) and The Author(s) 2016

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For America’s Peace Officers, the advance guard
of constitutional protections.
PREFACE
The US Constitution matters. As the “supreme law of the land,” the

Constitution is at the heart of civic life in the USA and central to the
role that the USA plays on the global stage. In American civic life, public
officials enter their profession by swearing an oath to protect, preserve,
and defend the Constitution. Non-sworn USA citizens and visitors
often invoke the Constitution in word and deed. Sometimes these non-
sworn invoke the Constitution intentionally as a premise in a statement
or conversation about their rights and responsibilities; sometimes these
non-sworn invoke the Constitution implicitly when they vote, serve on a
jury, or choose to obey or violate a law.
The Constitution also stands firmly at the center of the USA’s involve-
ment in world affairs: politically, socially, and economically. Never legally
or morally free from the Constitution’s constraints, global representatives
of the USA—whether from the military, business, politics, charitable
organizations, or as private citizens—are bound by the Constitution and
the laws it sanctions.
All of this has been the case since New Hampshire was the ninth state
to ratify the Constitution, in 1788. But thanks to the Internet and social
media, more people than ever before have a chance to participate in the
public conversation, whether it be about the community’s rights and
responsibilities or the rights and responsibilities of the public officials who
serve the community—and are members of it. In short, democracy has
the chance to flourish in ways it could not have before the advent of the
present technologies.
vii
viii PREFACE
Because of the same technologies the moral and legal spotlight on USA
government officials and other participants in USA civic life has never
been brighter. Reports of someone’s deeds, especially if heroic or outra-
geous, may “go viral” in an instant, with no thought to a presumption of
the agent’s innocence or to getting the whole story. People may weigh
into the public conversation with the possibility of a vast audience hearing,
if not listening to, the contribution.
At the same time, evidence suggests a pervasive lack of constitutional
literacy among the sworn and non-sworn participants in USA civic life. In
the absence of such literacy, fulfillment of the oath to the Constitution,
discharge of non-sworn civic responsibilities, or the exercise of legal rights
have no guarantee of success. To be sure, even the most constitution-
ally literate sometimes fail to act as they should or to construct a valid
argument as to why one should act that way, but they are free from a lack
of knowledge that compounds the problem.
Thus, an increase in constitutional literacy is imperative on two levels:
more people have to attain constitutional literacy, and even those with
some degree of constitutional literacy could be more literate.
Having said this, one faces at least the following questions: what is
constitutional literacy? What evidence is there for its pervasive lack? So
what—what value is there to constitutional literacy? How might one assess
someone’s constitutional literacy? How might one promote or encourage
constitutional literacy? Given the work on these questions so far, what
relevant work lies ahead?
The purpose of this book is to address these questions—in that order.
The book is not primarily an attempt to add content to anyone’s consti-
tutional literacy—there are many books that do this well. These books
include annotated Constitutions, and such topics as American history,
political and legal theory, and biographies of constitutional luminaries.
This book offers some examples that might add to the reader’s
repertoire, but the book’s primary purpose is to cast its vote for promoting
constitutional literacy among sworn and non-sworn stakeholders in the
Constitution. As a growing chorus attests, there is an urgency to this effort
that makes better constitutional literacy imperative.
ACKNOWLEDGEMENTS
There are many people to thank for helping produce this book. First is
Mireille Yanow, publisher at Palgrave Macmillan and a consummate pro-
fessional with whom I have worked before. Her wisdom, enthusiasm, and
kindness know no bounds. Second is my wife Rebecca, who took time out
of her scholarly and professional pursuits to help me with mine. Rebecca’s
help ranged from collecting and analyzing data and other information,
suggesting better ways of making a point, and reading through the docu-
ment for content, clarity, and consistency. Third is my friend, colleague,
and constitutional mentor, Lawrence Coshnear, Esq. Larry has kept me
well supplied with bibliographic and scholarly information that makes up
a considerable portion of this book. Larry also offered invaluable sug-
gestions for shaping my thought about this effort, noting especially the
important difference between the anatomy of the Constitution and its
physiology—the latter involving the Constitution put into practice. Fourth
are all of my students from the world of public safety, who have let me try
out on them many of my ideas for this book and who have taught me a
great deal in return. Fifth is the Philosophy Group with whom I have met
once a month since 1992. Like Larry Coshnear, a long-time member of
this group, its members have patiently let me try out my ideas and develop
my thoughts, and they have taught me a great deal in the bargain. Sixth is
my friend Mark Komrad, MD, a polymath who graciously and frequently
brings his intelligence and interests to bear in helping me re-right my
scholarly efforts. He helped me see the difference between trying to add
to one’s constitutional literacy and advocating for such an increase—with
this book taking the latter tack. Seventh are the folks at The Evergreen
ix
x ACKNOWLEDGEMENTS
Café, especially the owners Sam and Caroline, who welcome people to
stay as long as they wish, taking advantage of free Wi-Fi, good food and
drink, and an eclectic ambiance that is perfect for thinking and writing.
Eighth is my daughter Anna who helped me wade through some of the
data from the test to which this book frequently refers. Ninth is my boss,
Doug Ward, Director of the Division of Public Safety Leadership at Johns
Hopkins University, who supported my work on this book in every way a
gracious boss can. Tenth is my cat, whom I call Cat. Until recently I did
not like cats, but she changed all that when in spring 2015 she walked into
our house, decided to stay, and would never have taken no for an answer.
She is a terrific companion who shows no signs of constitutional literacy.
Of course, any shortcomings in this book are my responsibility alone,
and I beg any reader who encounters such shortcomings to let me know,
thus, helping me develop my constitutional literacy.
CONTENTS
1 Introduction 1
2 The Nature of Constitutional Literacy 9
3 The Lack of Constitutional Literacy 43
4 The Value of Constitutional Literacy 77
5 Assessing Constitutional Literacy 119
6 Improving Constitutional Literacy 183
7 Conclusion 225
Index 231
xi
CHAPTER 1
Introduction
On November 5, 2009, John Boehner (R-OH), Minority Leader of the US

House of Representatives, took the podium at a Republican rally against a
pending health care bill, waved a document defiantly, and declared:
This is my copy of the Constitution and I’m going to stand here with
the Founding Fathers who wrote in the Preamble, We hold these truths
to be self-evident, that all men are created equal, that they are endowed
with the unalienable rights of life, liberty, and the pursuit of happiness…
(C-Span 2009)
Boehner, encouraging participants to demand their constitutional right to

make their own medical decisions, was wrong on two and possibly three
counts. First, he was quoting the Declaration of Independence, not the
Constitution of the USA. Second, the Declaration’s beginning, which
some might unconventionally refer to as its preamble, begins “When in
the course of human events....”; the passage Boehner was quoting comes
later in the Declaration. Third, there is no explicit constitutional right to
make one’s own medical decisions.
On September 18, 2013, Nancy Pelosi (D-CA), House Minority
Leader, took the podium at the Center for American Progress and praising
the women’s rights convention held in Seneca Falls, New York 165 years
earlier, said.
© The Editor(s) (if applicable) and The Author(s) 2016 1

C. Dreisbach, Constitutional Literacy,
DOI 10.1057/978-1-137-56799-4_1
2 C. DREISBACH
Imagine the courage it took for those women to go to Seneca Falls and do
what they did there, to even leave home without their husband’s permis-
sion, or father’s, or whoever it was. To go to Seneca Falls, and to paraphrase
what our founders said in the Constitution of the United States: they said
the truths that are self-evident, that every man and woman, that men and
women were created equal and that we must go forward in recognition of
that. (Center for American Progress 2013)
The Constitution says nothing about self-evident truths, and the American
document that does, The Declaration of Independence, explicitly lists only
men as being created equal.
Boehner and Pelosi are not the first public leaders to confuse the
Constitution with the Declaration, nor are they apt to be the last. “Moral
Majority” founder and Baptist minister Jerry Falwell (1980), for example,
said, “Let us never forget that as our Constitution declares, we are
endowed by our Creator with certain inalienable rights.” On February
28, 2009, talk show host Rush Limbaugh (2009) said,
We believe that the preamble to the Constitution contains an inarguable truth

that we are all endowed by our creator with certain inalienable rights, among
them life, liberty, freedom (sic), and the pursuit of happiness. (My emphasis)
In 2010, Sarah Palin (2010), former US Vice Presidential candidate

and Tea Party activist declared that “Our Constitution, of course, essen-
tially acknowledge[es] that our unalienable rights don’t come from man;
they come from God.”
On February 13, 2014, Arenda Wright Allen, a federal judge and
President Obama appointee, declared Virginia’s ban on same-sex marriage
to be unconstitutional, claiming that “Our Constitution declares that ‘all
men’ are created equal, surely this means all of us” (Eckholm, 2014). The
Constitution does not declare this, nor was it originally all-inclusive.
Falwell and Limbaugh did not enter their professions by promising to
support the Constitution. As governor of Alaska, Palin took an oath to the
US Constitution, as she would have to if she realized her vice presidential
or presidential aspirations. Judge Allen had to take a similar oath. Boehner
and Pelosi had to utter the following to become US Representatives:
I, [name], do solemnly swear [(or affirm)] that I will support and defend
the Constitution of the United States against all enemies, foreign or domes-
tic; that I will bear true faith and allegiance to the same; that I take this
INTRODUCTION 3
obligation freely, without any mental reservation or purpose of evasion; and

that I will well and faithfully discharge the duties of the office on which I am
about to enter. So help me God. (5 U.S.C. §3331)
At the Republican rally, Boehner noted his 19 years of public service; at

the CAP Conference, Pelosi was celebrated for her 26 years in Congress.
Yet, how could they support and defend the Constitution when they can-
not tell it apart from the Declaration? Indeed, how many public servants,
for whom an oath to the Constitution is a professional entrance require-
ment, know the Constitution well enough to protect it?
So far, we have examples of people who should know better than con-
fusing the Declaration of Independence with the Constitution of the
USA. These are only some examples of lack of constitutional literacy
among sworn officials and public opinion leaders. Shortly after the assassi-
nation attempt on President Ronald Reagan, Secretary of State Alexander
Haig announced to the media, and hence to everyone with access to those
media,
Constitutionally, gentlemen, you have the President, the Vice President,

and the Secretary of State, in that order, and should the President decide
he wants to transfer the helm to the Vice President, he will do so. … As of
now, I am in control here, in the White House, pending the return of the
Vice President and in close touch with him. If something came up, I would
check with him, of course. (Sibilla 2016)
Under the 25th Amendment, ratified in 1967, the order of succession

after the President, is the Vice President, The Speaker of the House of
Representatives, The President pro tempore of the Senate, and then the
Secretary of State. We might give Secretary of State Haig a break, given
the heat of the moment, but he did take an oath to the Constitution, first
when he entered the military and again when he joined President Reagan’s
cabinet. And as far as we know, he did not have to demonstrate his consti-
tutional literacy before taking the oath.
Judging from the foregoing, from political rhetoric in public media,
and from many anecdotes, including those I have acquired through my
position teaching ethics to public safety professionals, constitutional lit-
eracy appears to be remarkably low. This is a problem both for sworn pro-
fessionals who cannot protect knowingly what they do not know and for
ordinary citizens who, in a republic, are supposed to help run the country
through informed voting and participation in public conversations.
4 C. DREISBACH
The lack of constitutional literacy where it should not be lacking is easy

to demonstrate. The moral and pragmatic value of constitutional literacy
are harder to demonstrate, but necessary to this book’s thesis. Identifying
the nature of constitutional literacy and the means for assessing it and
improving it require more effort still. These elements inform this book’s
structure.
Chapter 2 examines the nature of constitutional literacy, offering this
working definition: knowledge of the Constitution sufficient to invoke it
properly. People may invoke the Constitution verbally or by implication
through specific behavior, such as voting or participating on a jury.
Constitutional literacy is a matter of degree. Some people have sworn
an oath to the Constitution, and thus, should know it well enough to
know how to assess the success with which they are fulfilling that oath.
Others have sworn no such oath, but their participation in civic life neces-
sitates some familiarity with the Constitution nonetheless. Toward a more
detailed definition, Chap. 2 identifies eight levels of constitutional literacy,
thus offering an ostensive definition that exists in a continuum from basic
literacy to the scholarly literacy that one would expect of the Supreme
Court justices.
Moving beyond the anecdotal evidence showing a lack of constitutional
literacy among some sworn officials and public opinion leaders, evidence
with which we began this chapter, Chap. 3 offers three other types of
evidence for pervasive lack of constitutional literacy. First are studies that
legal scholars and foundations have done. These studies suggest a lack of
constitutional literacy, the value of increasing constitutional literacy, and
suggestions for effecting that increase. The second is a review of police
basic training programs, with a focus on courses, units, or topics that
specifically or obliquely refer to the Constitution. Third are the results
of a test that I have administered over the years, most often to students
at the beginning of my upper-level college course, Applied Ethics, the
Constitution, and Society. These scores are notably low, given that most of
the people who took the test are sworn police officers. The organization
of this test serves as the foundation for assessing and promoting constitu-
tional literacy, which Chaps. 5 and 6 discuss, respectively.
Chapter 4 of this text argues for the practical and moral value of con-
stitutional literacy. Even if we agree on a definition of constitutional lit-
eracy and its notable absence, we may still ask, so what? In brief, sworn
officials, as professionals, have a moral responsibility to do their job well.
This entails good moral character in general and adherence to principles
INTRODUCTION 5
of professional ethics in particular. Good moral character is virtue. Virtue,

as Aristotle claims (Nicomachean Ethics, 1105b20–1108b10), is the abil-
ity habitually to know the good and do the good. The good, he says, is
a species of the perfect and as “perfect” means neither too little nor too
much, the good is the mean between deficiency and excess. A virtuous
professional, then, is one who is able to make professional and personal
choices that are neither deficient nor excessive relative to the set of choices
available to him. One who swears to protect and defend the Constitution
ought to do so in a way that is neither excessive nor deficient. This requires
the sworn professionals’ knowing what they are protecting.
Referring to professional ethics more specifically, we may describe pro-
fessional ethics partly in terms of a set of minimum expectations for a
morally good professional. (Bayles 1988). Thus, for example, a profes-
sional should be competent, diligent, honest, candid, loyal, informed, and
committed to keeping one’s promises.
People might disagree on the scope and limits of each of these quali-
ties. For example, what does it mean to be a competent defender of the
Constitution? How might a sworn official’s loyalty to the Constitution clash
with loyalty to constituents, colleagues, or family members? When, if ever, is
it permissible to lie in defense of the Constitution? Whatever the ambigui-
ties on this list and whatever one might want to add to or remove from this
list, it stands to reason that if one’s base-line professional responsibility is to
keep the promise to support and defend the Constitution, then one needs
to know the Constitution well enough to evaluate one’s success or failure at
fulfilling the responsibility. Thus, to the extent that the community has the
right to expect its public officials to act with integrity, the community has
the right to expect them to be constitutionally literate. And the community
must be constitutionally literate enough to hold them to their word.
In the USA, whose primary political structure is putatively democratic,
the responsibility for constitutional literacy rests with sworn officials and
anyone who is able to participate politically. As legal scholar Toni Marie
Massaro (1993) notes, “Americans tend to define themselves and their
assumed rights in reference to constitutional principles more than any
other tenets” (70). In addition, Massaro argues, “constitutional literacy is
important not only to intelligent self-governance but also to the mutual
respect and toleration that is necessary for peaceful co-existence within
a heterogeneous culture” (129). This obligation applies at least to eli-
gible voters, those involved in citizen-public servant relations, and those
capable of critical consumption of news and other political information.
6 C. DREISBACH
Legal scholar Ilya Somin (2004) sums this up nicely: “A largely ignorant
electorate will often be unable to impose majoritarian control over elected
officials” (1297). So the value of constitutional literacy is clear, both for
the sworn official and the non-sworn citizen.
Chapter 5 offers one approach to assessing constitutional literacy. It is
based on the structure of the test from which I get some of the evidence
for a pervasive lack of constitutional literacy. This approach starts with two
basic pairs of distinctions: historical v. thematic, and internal v. external.
Anecdotally, it is clear that people who invoke the Constitution are often
more comfortable speaking in one of these four areas than in the other
three. Thus, a test for Constitutional literacy that incorporates this model
might be better at pinpointing where individual and collective strengths
and weakness lie regarding constitutional literacy.
This pair of distinctions yields four broad categories: internal themes,
internal history, external themes, and external history. Within each cat-
egory, questions may be easy, moderately difficult, or difficult.
Here is an outline of the exam topics. Chapter 5 explicates the model
and offers examples of questions at the various levels of difficulty.
Category I: Internal themes
• Requiring Reading the Constitution Only

• Distinguishing the Constitution from Other Texts:
• Requiring Extra Thought beyond a Reading of the Constitution,
such as Interpretation or Research
Category II: Internal history
• Pre-Ratification (before 1787)

• Post-Ratification (after 1787)
Category III: External Themes
• Directly Relevant to the Constitution

• Indirectly Relevant to the Constitution
Category IV: External history
• Pre-Ratification
• Post-Ratification
INTRODUCTION 7
– Directly Relevant to the Constitution

– Indirectly Relevant to the Constitution
Chapter 6 offers suggestions for improving constitutional literacy at
different educational levels, both formal and informal, using the test
described in Chaps. 3 and 5 as a proto-curriculum. Areas for improve-
ment include the classroom, professional development for sworn officials,
and public discourse.
Chapter 7 concludes the book with a summary of findings and sugges-
tions for next steps in considering constitutional literacy. The scope and
limits of this book point to two sorts of next steps: those that follow this
book’s lead and those that might contribute to constitutional literacy in
other ways. Those that follow this book’s lead will find plenty of oppor-
tunities to add to the information that I have included, refine the test that
serves as a foundation for three of the chapters, and suggest improved
ways of assessing and interpreting the data. Stepping outside this book,
one might study material that already exists, whose primary purpose is to
promote constitutional literacy, and expand that study to examine other
countries that have constitutions.
From the opening of the Constitutional convention to the present,
political conversation in the USA has been raucous, robust, and frequently
significant in terms of its impact on public policy and on individuals’ lives.
At the same time, social and political life in the twenty-first century is as
complicated and full of possibility as it has ever been, with technology
leading the way in opening up the world and making vast amounts of
information available that would have been unavailable or much harder to
access in the absence of this technology. How much better would things be
if a majority of the participants in a life governed by the Constitution were
constitutionally literate? Such literacy is not just a luxury; it is imperative.
REFERENCES
Aristotle. Nicomachean ethics. Trans. by W. D. Ross. 1941. In The basic works of
Aristotle, ed. Richard McKeon, 1105b20–1108b10. New York: Random House.
Bayles, Michael. 1988. Professional ethics, 2nd edn. Belmont: Wadsworth.
Center for American Progress. 2013. Fair shot: A plan for women and families
to get ahead [Conference]. American progress.org, September 18. https://
www.americanprogress.org/events/2013/08/22/72665/womens-
agenda-for-the-21st-century/. Included video of Nancy Pelosi. Specific
8 C. DREISBACH
URL for video: http://images2.americanprogress.org/CAP/2013/09/

Event_2013_9_18_pelosi.mp4.
C-Span. 2009. Republican health care agenda [Video recording]. Washington, DC:
C-Span, November 5. http://www.c-spanvideo.org/program/289825-1.
Eckholm, Erik. 2014. Federal judge overturns Virginia’s same-sex marriage ban.
New York Times, February 14. http://www.nytimes.com/2014/02/14/us/
federal-judge-overturns-virginias-same-sex-marriage-ban.html?_r=0.
Falwell, Jerry. 1980. Listen America. New York: Doubleday. Quote Accessed 22
Jan 2016. http://www.wwnorton.com/college/history/archive/resources/
documents/ch36_02.htm.
Limbaugh, Rush. 2009. Keynote address. The conservative political action confer-
ence, February 28. http://www.rushlimbaugh.com/daily/2009/02/28/
rush_s_first_televised_address_to_the_nation_conservative_political_action_
conference_cpac_speech.
Massaro, Toni. 1993. Constitutional literacy: A core curriculum for a multicultural
nation. Durham: Duke University Press.
Palin, Sarah. 2010. Interview. The Bill O’Reilly Factor [Television series], May 6.
http://www.foxnews.com/story/0,2933,592422,00.html.
Sibilla, Chris. 2016. Al Haig and the Reagan assassination attempt: ‘I’m in charge
here. Association for Diplomatic Studies and Training. [Website]. http://adst.
org/2014/03/al-haig-and-the-reagan-assassination-attempt-im-in-
charge-here/.
Somin, Ilya. 2004. Political ignorance and the countermajoritarian difficulty: A
new perspective on the central obsession of constitutional theory. Iowa Law
Review 89: 1289–1368.
CHAPTER 2
The Nature of Constitutional Literacy
INTRODUCTION: WRITS OF ASSISTANCE AND THE 4TH

AMENDMENT
Consider the oft-invoked 4th Amendment to the Constitution:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Knowledge of what this Amendment says indicates constitutional liter-

acy at a basic level. In public discourse the 4th Amendment is invoked
frequently in principle, if not verbatim, alongside the 1st Amendment
(freedom of speech and religion), the 2nd Amendment (the right to bear
arms), the 5th Amendment (the right to an attorney and the right not to
incriminate oneself), and the 14th Amendment (due process and equal
protection under the law). Also, descriptions of police basic training that
cite Amendments specifically cite the 4th Amendment more than any
other. Knowing the meaning and history of the 4th Amendment suggests
a higher degree of constitutional literacy than merely knowing its verbal
content. This meaning and history also remind us that the full scope of
constitutional literacy is beyond the document itself and includes knowing
its history and philosophical influences.

DOI 10.1057/978-1-137-56799-4_2
10 C. DREISBACH
A key moment in the genesis of the 4th Amendment occurred in

February 1761, 30 years before the Amendment was ratified, when attor-
ney James T. Otis challenged the legality of writs of assistance. A writ
of assistance was a warrant issued by the Royal Court of England. The
warrant allowed its holder to search any premises the holder suspected of
hiding smuggled goods, without the holder having to seek a warrant for
each instance of suspicion. Upon its issue, the warrant was valid for the life
of the monarch, plus six months, and could be transferred at the holder’s
discretion.
By 1761, the American colonists were showing clear signs of discon-
tent with Parliament’s treatment of them. The colonists were especially
unhappy with taxes imposed on them without their input. One sign of this
discontent was growing protests about the writs of assistance. In 1761, the
Royal Court of Massachusetts agreed to hear a case challenging the legal-
ity of the writs. James T. Otis, as the local advocate-general, was supposed
to defend their legality. Instead, he resigned his post and agreed to repre-
sent a group of Boston merchants pro bono in challenging the writs’ consti-
tutionality. Twenty-six-year-old John Adams (1818) witnessed Otis’s plea
and many years later would claim that this was the tipping point at which
the colonial majority shifted from loyalists to revolutionaries:
The child independence was then and there born, [for] every man of an
immense crowded audience appeared to me to go away as I did, ready to
take arms against writs of assistance. (137)
Standing before the judges, Otis (1761) opened with his promise:
to my dying day [to] oppose, with all the powers and faculties God has given
me, all such instruments of slavery on the one hand and villainy on the other
as this Writ of Assistance is.
Otis acknowledged that such writs were acceptable in ancient English

law, but the law had long since recognized that the only legal warrants
were those “to search such and such houses, specially named, in which
the complainant has before sworn that he suspects his goods are con-
cealed.” Therefore, Otis claimed, writs of assistance were illegal under
English common law and thus under the English Constitution. Given the
legal necessity of a warrant being specific, Otis attacked writs of assistance
on four grounds: their universality, which subjected everyone to them
THE NATURE OF CONSTITUTIONAL LITERACY 11
without further proof of probable cause; their perpetuity, which left their
holders unaccountable for any abuse of the writs’ authority; the ability
these writs gave to enter any shop or house at will without an invitation;
and the power they gave to even the most “menial servants” of the holders
to act with impunity against property owners.
Invoking jurist William Blackstone’s claim that a man’s home is his
castle, Otis (1761) declared that “This writ, if it should be declared legal,
would totally annihilate this privilege.” The court rejected Otis’s plea and
in 1765 Otis published a pamphlet in which he repeated that the writs of
assistance violate the British Constitution going all the way back to the
Magna Carta.
In 1767, in response to Otis’s crusade and other worrisome colonial
agitation, Parliament responded with the Townshend Acts. These acts,
named after Charles Townshend, England’s Chancellor of the Exchequer,
were divided into four parts. Part three increased the ways and opportuni-
ties for authorities to catch smugglers, including a re-affirmation of the
writs of assistance. Parliament repealed three of the four acts in 1770 but
kept the second act, which taxed several imports including tea. Objecting
to “taxation without representation,” The Sons of Liberty rebelled against
this act in 1773, destroying a shipload of tea in the Boston Harbor—an
event history would call the Boston Tea Party. By now, in hindsight, the
American Revolution was a certainty.
So we have the well-known 4th Amendment, and we have the less well-
known history behind it—with James T. Otis as a focal point, but going
back at least to the Magna Carta. As we turn to the nature of constitutional
literacy, we realize it must exist on several levels or in different degrees.
THE NATURE OF CONSTITUTIONAL LITERACY

A Working Definition
So what is constitutional literacy? Basically, it is knowledge of the
Constitution sufficient to invoke it properly. One might invoke it verbally,
but one might also invoke it implicitly through actions such as voting, for
example. An ordinary conversation between two unsworn people might
not require a lot of familiarity with the Constitution. In a debate among
Supreme Court Justices, the necessity of constitutional literacy is high. In
between come requisite levels of constitutional literacy for sworn officials,
public opinion leaders, and citizens engaged in civic life.
12 C. DREISBACH
This basic definition of constitutional literacy may be too simple. As

law professor Melissa Hart (2013) notes, “The concept of constitutional
literacy is not uncontroversial” (825). She adds, “What is constitutional
literacy and how is it different from civic literacy? Is constitutional literacy
a neutral concept? If it is not, does that matter?”(825).
It may be common to conflate civic literacy with constitutional lit-
eracy. But civic literacy is a broader concept taking into account the
structure and roles of government and its relationship to the governed.
Constitutional literacy starts with knowing the document itself and
moves out in concentric circles of knowledge and understanding, as the
level of constitutional literacy required for the task at hand increases.
One can be functionally constitutionally literate without knowing
about James Otis’s attack on writs of assistance; one is not functionally
constitutionally literate if one does not know the basic import of the
4th Amendment. For all that, the concept of constitutional literacy is
ambiguous, and therefore controversial.
For one thing, there is a debate about whether constitutional literacy
is primarily about the general principles behind the Constitution or spe-
cific facts in and about it. My constitutional mentor, attorney Lawrence
Coshnear, Esq., describes this as the difference between the physiology of
the Constitution and its anatomy. Harvard Law School Professor Mark
Tushnet (2012) claims that constitutional education should focus on civic
capacity over factual knowledge. Thus, constitutional literacy is as much
about what a person can do as what a person knows. The founders of the
We the People Program, at the Center for Civic Education (2014), agree.
The program’s curriculum
Provides upper elementary, middle, and high school students with a course
of instruction on the history and principles of the United States constitu-
tional democracy. Critical thinking exercises, problem-solving activities, and
cooperative-learning opportunities help develop intellectual and participa-
tory skills while increasing students’ understanding of government institu-
tions and fostering attitudes that students need to participate as effective,
responsible citizens.
The Marshall-Brennan Constitutional Literacy Project puts laws students

as teachers into public high schools, where the curriculum focuses on
constitutional rights as supported by court decisions, rather than focus-
ing on an anatomy of the Constitution and its history and philosophical
underpinnings.
Toni Massaro (1993) regards constitutional literacy as the general lit-

eracy minimally necessary to study the Constitution, where our opening
definition describes such literacy as what is minimally necessary to invoke
the Constitution properly. Irish commentator Fiona de Londras (2012)
defines constitutional literacy as “an awareness of the history, content and
impact of the Constitution both as a reflection of national values and as
the basis for a constitutionalist limitation on what the state can and cannot
do.” Although she refers specifically to Ireland’s Constitution, the defini-
tion is a useful addition to our collection of possible definitions. Here the
emphasis is on the Constitution’s physiology rather than its anatomy.
Public scholar Betsy Strauss (2015) offers a blog with the title
“Constitutional Literacy…What does it really mean?” But she does not
answer the question, contrary to the title’s promise, even though she
says “I have learned that starting with definitions is vitally important to
understanding anything.” Instead, she refers the reader to Michael Farris’s
(2011) Constitutional Literacy Course—a set of 25 DVDs aimed at high
school students, especially homeschoolers.
Rather than offer a definition of constitutional literacy, Farris calls citi-
zens to arms, warning them that the current state of affairs in government
is unacceptable, and that, citizens have a duty to throw out the malfeasant
officials. The course itself is rich in information about the US Constitution
and about Farris’s interpretation of it; but there is no clear, accurate, and
useful definition of constitutional literacy.
So far, we have identified a number of ways of thinking about, and
possibly defining constitutional literacy. Some emphasize knowledge;
some emphasize action. Concerning knowledge, Massaro regards con-
stitutional literacy as the capacity to study the Constitution; the group
Human Rights in Ireland regards constitutional literacy as knowledge of
the Constitution’s anatomy and physiology, and the Marshall-Brennan
Project regards constitutional literacy primarily as knowledge of one’s con-
stitutional rights. Concerning action, Mark Tushnet, the We the People
Program, and Michael Farris regard constitutional literacy as the capacity
for civic engagement, with Farris highlighting engagement that aims at
fixing a broken government.
Our preliminary definition attempts to incorporate both action
and knowledge: regarding constitutional literacy as knowledge of the
Constitution sufficient to invoke it properly, recognizing that such invoca-
tion is an action—whether by words or by implication—and such invoca-
tion will occur at different levels of complexity and purpose.
14 C. DREISBACH
Deciding among these and other possible definitions of constitutional

literacy depends in part on what sort of definition we seek.
There are four types of definition: analytic, stipulative, dictionary, and
ostensive. It is tempting to look for a definition of constitutional literacy
among the first three, but the fourth type might be the most useful in our
case.
Four Types of Definition
Analytic
An analytic definition replaces the word one wants to define with a word
or phrase that means the same thing. For example, “A bachelor is an
unmarried man.” “Bachelor” and “unmarried man” mean the same thing,
and the word “is” acts as an equal sign: “Bachelor=unmarried man.” This
definition might be useful, for example, when someone just learning the
English language understands what “unmarried” and “man” mean, but
has not yet learned the meaning of “bachelor.”
Our working definition of constitutional literacy is that it means, at
least, knowledge of the Constitution sufficient to invoke it properly. On
its face, this looks like an analytic definition. If it is, it is not too helpful.
For one thing, it assumes certain fixed connections between “literacy” and
knowledge, and an unambiguous meaning of “constitutional” when applied
as a qualifier to “literacy.” Even if we could demonstrate this connection in
an unambiguous way, an analytic definition might not be the most helpful.
To see the limited usefulness of an analytic definition, consider a young
child’s request for a definition of an orange. Initially, she may believe that
an orange is any edible sphere: tomatoes, peaches, apples. But in time, she
learns to tell the difference between oranges and other similarly shaped
fruit and vegetables. She probably does not learn this from an analytic
definition. Such a definition might look like this:
1a: a globose berry with a yellowish to reddish-orange rind and a sweet

edible pulp b: any of various small evergreen citrus trees (genus Citrus) with
glossy ovate leaves, hard yellow wood, fragrant white flowers, and fruits that
are oranges. (Orange 2016)
Even if the child listened to this whole definition, it would not help her
learn what an orange is.
Defining constitutional literacy is more like defining an orange than like

defining bachelor. There may be an accurate analytic definition of “con-
stitutional literacy,” but it would be useless to those who want to know
what constitutional literacy is or to those who disagree on the scope and
limits of its meaning.
Stipulative
To offer a stipulative definition is to define a word by consensus. In wood
shop, the students and teacher may agree that “plane” refers to a tool for
shaving wood. People in a geometry class or an aerodynamics class would
find that particular definition of “plane” to be useless. It is tempting to
define constitutional literacy stipulatively so that we can simply agree that,
for example, constitutional literacy means knowledge of the Constitution
sufficient to invoke it properly, without the need for further demonstra-
tion. This book presumes this definition as a useful place to start. But
some might object that it is too subjective. Constitutional literacy may be
the sort of knowledge we describe, but if so, this is not just because we
have taken a vote and decided it is so—no matter how we vote there is a
chance we might be wrong. We may want more objective criteria for con-
stitutional literacy, against which we can test the proposition that consti-
tutional literacy is the sort of knowledge our working definition proffers.
Let’s return to the little girl and the orange to see the limited useful-
ness of a stipulative definition. If the girl asks her father, “Daddy, what’s
an orange?” she will not settle for the answer, “Honey, in our house we
have taken a vote and decided that orange means a particular kind of fruit
with a particular texture and taste.” The child has no interest in creating
a name for something; she wants to know what object exists that goes by
that name.
Dictionary
A third type of definition is a dictionary definition. The American Heritage
Dictionary has two entries for “orange” and no entries for “constitutional
literacy.” It defines “constitutional” thus:
1. Of or relating to a constitution: a constitutional amendment.

2. Consistent with, sanctioned by, or permissible according to a constitu-
tion: a law that was declared constitutional by the court; the constitu-
tional right of free speech.
16 C. DREISBACH
3. Established by or operating under a constitution: a constitutional

government.
4. Of or proceeding from the basic structure or nature of a person or thing;
inherent: a constitutional inability to tell the truth.
5. Of or relating to one’s physical makeup.
6. A walk, taken regularly for one’s health. (Constitutional 2016)
And “literacy” thus:
1. The condition or quality of being literate, especially the ability to read

and write.
2. The condition or quality of being knowledgeable in a particular subject
or field: cultural literacy; biblical literacy. (Literacy 2016)
We have in mind the first entry from “constitutional” and the second
entry from “literacy,” although some might insist on including the first
entry from literacy as well. In any event, we are not interested merely in
how people use these words—like the little girl, we want to know what
something is. A dictionary merely describes the current usage of a term, it
does not declare whether that usage corresponds to reality. Besides, how
useful would it be to respond to the little girl’s inquiry by telling her to
consult the dictionary?
Ostensive
A fourth and underrated type of definition is definition by example.
Eventually, the little girl will be able to distinguish oranges from other
edible spheres because she will have experienced enough oranges and
non-oranges to get the difference. When and how this works are sub-
jects for scholarly research but need not concern us here. The point
is that the little girl did not arm herself with a formal definition of
orange and then go looking for objects that fit the definition; she
let the objects speak for themselves until she was able to distinguish
oranges from non-oranges. We might take the same tack as the little
girl and look at examples of constitutional literacy—or examples of
constitutional illiteracy—for elements to include in our definition. In
Chap. 4 we will consider evidence for significant lack of constitutional
literacy, with an eye toward identifying ways to improve it. This will
help us to see what constitutional literacy is not and thus, by examples,
what it must be.
We have decided that neither an analytic definition of constitutional

literacy nor its dictionary definition(s) seems useful, even if such were pos-
sible. It is easy to generate examples of constitutional illiteracy—we did
this in the opening chapter of this book—and from these examples we
might articulate an ostensive definition of constitutional literacy. We may
also continue with our stipulative definition, namely, knowledge of the
Constitution sufficient to invoke it properly.
Even if we stick to a stipulative or ostensive definition, we can do bet-
ter than we have so far. One way to proceed is to think about degrees or
levels of constitutional literacy. Another is to think about how to construct
an assessment tool for constitutional literacy. We will look at the first of
these in this chapter and the second of these in Chap. 5. I have used both
approaches in my course, Applied Ethics, the Constitution, and Society,
an upper-level college course in Johns Hopkins University’s Division of
Public Safety Leadership. I have also used them in one- and two-day eth-
ics courses for various federal, state, and local law enforcement agencies.
Although these approaches should be developed and implemented with
more empirical rigor than I offer here, they have demonstrated the severe
limits of many—if not most—participants’ knowledge of the Constitution.
This quasi-experiment has, in turn, whetted participants’ appetites for
more conversation and education about the Constitution and has indi-
cated areas of constitutional literacy most in need of attention.
Eight Levels of Constitutional Literacy

The first approach posits eight levels of literacy, in ascending order of
quantitative complexity relative to the knowledge of the Constitution’s
basic anatomy. We may distinguish each level by a brief description and
examples of what one might be expected to know at this level.
Level 1: The ability to distinguish the Constitution from other documents,
most notably, the Declaration of Independence.
We opened with examples of sworn officials and unsworn opinion lead-
ers confusing the Declaration of Independence and the Constitution. But
they are different, for reasons which emerge as the level of constitutional
literacy rises. They have different histories and verbal content (Level 2–4).
Thus, arguments concerning their meaning differ (Level 5). Since the
Declaration has no standing in court, it plays no role in court decisions.
The Constitution, on the other hand, is central to any court decision.
18 C. DREISBACH
The sixth level of literacy includes familiarity with the more famous court
cases. The Declaration’s underlying theories of law, rights, and justice dif-
fer from the Constitution’s, so a high level of constitutional literacy, the
7th level in our case, includes familiarity with key disagreements about
the nature of law, rights, and justice, and which theories about each are
reflected in the Constitution as opposed , for example, to the Declaration.
Finally, Level 8, leaving behind any comparison of the Constitution with
the Declaration, involves familiarity with the more arcane debates about,
for example, the history and nature of constitutional interpretation. Let’s
take a longer look at each.
At Level 1, one should be able to decide for each following example
whether it is from the Constitution. This requires little more effort than read-
ing through the Constitution carefully. The low level of difficulty is in decid-
ing whether the passage is from the Constitution. If it is not, the quotation’s
source may be more difficult to identify. Consider the following examples.
• We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness.
Clearly, at least from the work we have done so far in this book,
this selection is from the Declaration of Independence, not the US
Constitution.
• Government of the people, by the people, for the people, shall not perish
from the earth.
This is so common a refrain, and it sounds constitutional, so one
might mistakenly claim that it is from the Constitution. It is from
Lincoln’s Gettysburg Address.
• The Senate of the United States shall be composed of two Senators from
each State, chosen by the Legislature thereof.
This is from Art. I, sec. 3 of the Constitution.
• No Soldier shall, in time of peace be in any house, without the consent of
the Owner, nor in time of war, but in a manner to be prescribed by law.
This is the 3rd Amendment to the Constitution
• The United States in Congress assembled, shall have the sole and exclu-
sive right and power of determining on peace and war…
This is from the Articles of Confederation, Article IX. Article I,
Section 8, Clause 11 of the Constitution gives Congress the power
to declare war; but Article II, Section 2 gives the President the
responsibility of making war, as the Commander-in-Chief of the US
Army and Navy.
Level 2: Knowledge of the basic history and basic anatomy of the
Constitution.
At this level, one should know, for example, when the Constitutional
convention convened (May 25, 1787); when the Constitution was signed
(September 17, 1987); when was it ratified (September 13, 1788); how
many Articles it has (7); how many Amendments (27); and what, in
general, each Article or Amendment is about. Consider the following
examples.
• Which Article is about the judicial branch?

Article III.
• Which Article is about the Amendment process?
Article V.
• Which Amendment abolishes slavery?
The 13th Amendment.
• Which Amendment claims that rights not specifically mentioned are
retained by the people?
The 9th Amendment.
• What is the minimum age for a US representative? A US Senator?
The President of the USA?
25, 30, 35, respectively.
Level 3: Knowledge of certain significant details from the Articles and the
Amendments.
These include, for example, the requirements for being elected to,
appointed to, or removed from federal office; the length of terms of office;
the scope and limits of the powers of each office; and the general rights
and responsibilities that the Amendments create for individual citizens and
for the government. Consider the following examples.
• The Congress shall have Power To lay and collect Taxes, Duties, Imposts
and Excises. What are excises?
Taxes on domestic consumption, goods, and services.
20 C. DREISBACH
• The Constitution gives Congress the power to grant Letters of Marque

and Reprisal. What in plain English, is this power?
The power to allow private ships to commit what otherwise would
be considered piracy.
• What is a Bill of Attainder?
Legislative punishment of a person without a trial.
• To whom does the Constitution give the power to select the President?
The states, unless there is a tie, in which case the House of
Representatives makes the final decision.
Level 4: Knowledge of most details of each Article and Amendment and
the history surrounding its creation and ratification. Knowledge of James
T. Otis and the writs of assistance might reflect this level. Consider the
following examples.
• Was the express purpose of the Constitutional Convention to replace the

Articles of Confederation with a new system of government?
No. The express purpose of the convention was to modify the Articles
to enable greater national ability to form a military and collect taxes.
The people planning the convention knew that the effect, if success-
ful, would be to replace the Articles completely.
• In each state, who ratified the Constitution, a state convention or the
state’s legislature? A state convention (Art. VII)
• The 19th Amendment gave women the vote. Could women in the
United States vote before then?
• Yes. Each state decided voter qualifications (Kelly 2013). Beginning
in 1890, Wyoming allowed women to vote. And from 1776 to 1807
women in New Jersey who owned property could vote.
• Did all thirteen states have representatives at the Constitutional
Convention?
No. Rhode Island refused to send a representative and under the
Articles of Confederation, which required unanimous consent
among the states to make any significant changes to it, that should
have been the end of the Convention. To remove this obstacle, the
signed draft of the Constitution required only three-fourths of the
states to ratify it. Of course, other states at their own risk would be
free to live outside of the protection of the USA.
Level 5: Familiarity with the more important arguments for the various
elements of the Constitution.
The Constitution offers no arguments for its contents unless one con-
siders its Preamble to contain the premises for which the rest of the
document is an argument. Why does the President serve four years,
instead of two or six, for example? Why must a candidate for the Senate
be at least 30 years old? Why do Supreme Court Justices get to serve
for life? The Constitution neither explains why nor offers a defense for
these declarations. If the Preamble is a set of premises, then we are left
to wonder why or how a four-year presidential term, rather than some
other configuration, would help form a perfect union, provide for the
common defense, etc.
Concerning the seven Articles, the best place to find arguments for
them is the Federalist papers—a set of 85 editorials, written between
October 1787 and August 1788, inclusive, each appearing in one of three
New York newspapers: The Independent Journal, the New York Packet, and
the Daily Advertiser. Writing under the pseudonym “Publius,” Alexander
Hamilton (who wrote 52 papers), James Madison (28), and John Jay (5),
took turns writing editorials with the goal of convincing New York to
ratify the Constitution.
The basic argument of the collection of papers was simple:
1. A federal government is better than the alternative (especially the
confederacy created by the Articles of Confederation).
2. The federation that the Constitution proposes is better than other
federal models.
3. The only way to institute this government is for at least nine states
to ratify the Constitution.
4. New York may be the difference between ratification and defeat.
5. Therefore, New York should ratify the Constitution.
In making this argument, the Federalist devotes each paper to a par-
ticular part of the Constitution itself or to explaining the debate that took
place during its development. Thus
Premise 1: A federal government is better than a confederate govern-
ment. (Papers 1–51)
(a) Introduction (1)

(b) Government Responsibility (2–22)
22 C. DREISBACH
1. Dangers facing the United States (2–14)
a. Foreign Dangers (2–5)

b. Domestic Dangers (6–10)
c. Benefits of s Strong Union (11–14)
2. Problems with Confederacy (15–22)
(c) Power Needed (23–36)
1. Defense (23–29)
2. Taxation (30–36)
(d) Drafting the Constitution (37–51)
1. The Convention (37–40)
(a) Objections (37–38)

(b) Republican Form of the Plan (39–40)
2. Federal Powers (41–44)

3. State Powers (45–46)
4. Separation of Powers (47–51)
Premise 2: The proposed federal plan is best
(a) The Legislative Branch (52–66)
1. House of Representatives (52–61)

2. Senate (62–66)
(b) The Executive Branch (67–77)
1. Objection; Electoral College (67–69)

2. Unity, Duration, re-eligibility, Support (70–73)
3. Powers (74–77)
(c) The Judicial branch (78–83)

(d) Miscellaneous (84)
(e) Ratify Now! (85)
The Constitution was ratified when New Hampshire became the 9th state
to do so, on June 21, 1788, over a month before New York ratified it on July
26, 1788, so the primary purpose of the Federalist papers was moot. But they
remain the best argument for the Constitution, both in comprehensiveness
and in coming from participants in the Constitution’s construction.
Concerning the 27 Amendments, since only the 2nd Amendment
contains its own argument—“A well regulated militia, being neces-
sary to the security of a free State, the right of the people to keep and
bear Arms shall not be infringed”–one has to look elsewhere for the
premises underlying the Amendments, such as transcripts of legislative
debates about the Amendments, Supreme Court decisions, the history
of the disagreements that led to the Amendment, and scholarly texts
(Levy 2001; Cogan 2015).
These arguments are of three sorts: empirical, a priori, and from
authority.
Among the empirical arguments are those that demonstrate the util-
ity of a practice that worked before the Constitution was written and the
failure of a contrary practice in the past. An example of the former would
yield this question, for example:
• Of the following pre-constitutional documents, which recognizes the

right to free speech: The Magna Carta, The English Bill of Rights, The
Massachusetts Bay Colony Body of Liberties, or all of the above?
The Massachusetts Bay Colony Body of Liberties.
An example of the latter would yield a question of the following sort:
• Did the 6th Amendment right to counsel contradict English law?

Yes, because in English law the judge was expected to protect the
defendant’s rights.
Among the a priori arguments are those that appeal to common sense
and those that present as axiomatic.
An example of an appeal to common sense is the “Great Compromise,”
which occurred in the Constitutional convention. This compromise called for
a bi-cameral legislature consisting of a Senate with equal representation for
each state, and a House of Representatives with representation proportional
to the state’s population. This was seen to be superior to the New Jersey plan,
which called for a unicameral legislature in which each state had the same
24 C. DREISBACH
number of representatives, and the Virginia Plan, which called for a bi-cameral
legislature in which membership of each chamber was based on population.
A test question in this vein could be, for example,
• At the Constitutional Convention, which plan called for a unicameral

legislature in which each state had one vote: The Virginia Plan, The
New Jersey Plan, The Maryland Plan, or the Great Compromise?
The New Jersey Plan.
As for appeals to axioms, consider this test question, for example:
• To which Amendment was Justice Joseph Story referring when, in 1833,

he posited the duty to protect “that great right of the common law, that
a man’s house shall be his castle”?
The 3rd.
In addition to empirical and a priori arguments for particular elements
of the Constitution, there are appeals to authority, most commonly the
US Supreme Court, which will, in some decisions, make the case for the
constitutional element that serves as a premise for that decision. There is
more to say about the Supreme Court in our discussion of the next level
of literacy, but here is an example of a question that pertains to this area:
• Did Marbury v. Madison (1803) explicitly establish that “the federal

judiciary is supreme in the exposition of the law of the Constitution”?
No. Although this case is often cited as the point at which the Court
laid claim to this power, it was not so explicitly stated until the
Court’s decision in Cooper v. Aaron (1958); and repeated in Baker
v. Carr (1962).
Level 6: Familiarity with the more famous court cases
“More famous court cases” is a subjective phrase, but we would expect
people at this level of constitutional literacy to have heard about, if not
know in detail, cases such as Marbury v. Madison (1803), Plessy v. Ferguson
(1896), and Brown v. Board of Education (1954). With a little effort, one
could expand this list considerably.
Formal training in the Constitution often focuses on court decisions,
rather than on a careful reading of the Constitution itself, consideration of
its historical underpinnings, or evaluation of arguments such as those in the
Federalist. This is true, for example, in police academies where recruits learn
about the important court cases affecting police work, such as Miranda v.
Arizona (1966) and Terry v. Ohio (1968), but there is no prescribed study
of the Constitution in its entirety, or in its historical or theoretical contexts.
Thus, when academy graduates take the oath to protect the Constitution,
they often have no clear idea of what they are swearing to protect.
Legal scholar, Sanford Levinson (1992) makes this point nicely:
The United States Constitution can meaningfully structure our polity if

and only if every public official—and ultimately every citizen—becomes a
participant in the conversation about constitutional meaning, as opposed
to the pernicious practice of identifying the Constitution with the decision
of the United State Supreme Court or even of courts and judges more
generally. (406).
Here are some examples of questions in this vein:
• Did Section 1 of the 14th Amendment overturn the decision in Dred

Scott v. Sandford, 1857?
Yes. The Dred Scott decision held that neither Africans nor their ances-
tors could be US Citizens. Section 1 of the 14th Amendment says All
persons born or naturalized in the USA, and subject to the jurisdiction
thereof, are citizens of the USA and of the state wherein they reside.
• Can a person be legally prosecuted for burning a cross, if it is an act of
hate speech?
Yes. Not as an act of speech, but as an act of arson. (R.A.V. v. St.
Paul, 1992)
• Which infamous 19th century Supreme Court decision did Brown v.
Board of Education, 1954 overturn?
Plessy V. Ferguson, 1896 (“Separate but equal”)
• Prior to Roe v. Wade, 1973, could a woman get a legal abortion in the
United States?
Yes. Prior to 1973 each state could decide for itself whether to allow
abortions. Roe v. Wade prohibits states from denying this right up
through the 24th week of a woman’s pregnancy.
Level 7: Familiarity with key disagreements about the nature of law, rights,
and justice, and which theories about each are reflected in the Constitution as
opposed, for example, to the Declaration.
26 C. DREISBACH
The Constitution implies specific theories of laws, rights, and justice. In

the case of all three, the Constitution and the Declaration disagree.
The law
In the United States government officials promise to protect, defend,
and preserve the Constitution of the United States of America. The
Constitution defines itself as “the Supreme Law of the Land” (U. S.
Constitution. Art. II, cl. 2), but Americans confuse three different theo-
ries of law at the cost of clear thinking about the law’s nature and scope.
Natural law theory holds that some power higher than humans—God or
nature itself—gives us our law. Legal positivism holds that human legisla-
tures make law. Legal realism holds that judges make law. America’s prime
examples of each include, respectively, The Declaration of Independence
(1776), The U.S. Constitution (1787), and Justice’s John Marshall’s deci-
sion in Marbury v. Madison (1803).
For natural law theory, the oldest of the three, a power higher than
humans gives us the law and our task is to discern it, publicize it, and
live by it. Its most famous American expression is in the Declaration of
Independence:
We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.—That to secure
these rights, Governments are instituted among Men… That whenever any
Form of Government becomes destructive of these ends, it is the Right of
the People to alter or to abolish it, and to institute new Government…
Writing these words, Thomas Jefferson applied John Locke’s (1690)

natural law views, but the text also reflects the older, more theological
brand of the medieval theologian Thomas Aquinas who put a Christian
spin on Ancient philosopher Aristotle’s theology.
Aristotle (1941) agrees that moral principles come from nature.
Theologically, he suggests that God is the perfect being toward which every
other being strives, but God has no interest in us (Aristotle Metaphysics
1072a21–1073a12). Thus, says Aristotle, human interaction with nature
and its laws need not go beyond sound science and rational thought.
St. Thomas Aquinas, a Roman Catholic monk, embraced Aristotle’s
ethics, but more theologically. Where Aristotle’s God has no interest in
human morality, Thomas’ God is the first cause of everything, including
nature and its moral laws (Thomas 1920, 1.2. q. 2, Art. 3). Since, for
Thomas, nature acts according to laws and since God is their legislator,
we can discern God’s will by understanding those laws, which we have a
duty always to obey (1.2. q. 91, Art 1). We discern those laws through
reason, says Thomas, which supports Aristotle’s virtue theory. Thus,
Thomas combines Aristotle’s theology, his virtue theory, natural law, and
Christianity into one package.
With Thomas as its premier philosopher, Roman Catholicism declares,
for example, that abortion is contrary to natural law, since abortion sub-
verts the purpose of pregnancy, which is to produce life.
Thomas combines belief in natural law with the belief that governments
are naturally or divinely appointed (1.2. qq. 103–119). If government
enacts a law that is contrary to natural law, the human law is “no law at
all” (1.2. q. 91, Art. 1).
Compare this to social contract theory, which holds that people create
governments by contracting with each other to recognize a sovereign—a
monarch, a group of aristocrats, or a democratic body—and to agree to a
set of laws. Jefferson says this in the Declaration:
to secure these rights, Governments are instituted among Men, deriving

their just powers from the consent of the governed….
He takes his cue from Locke and Thomas Hobbes (1651). Hobbes and
Locke believe in natural law, but they also believe that people, not nature,
create governments, and that governments create law through human leg-
islation. Thus, on a foundation of natural law, Hobbes and Locke develop
legal theories consistent with legal positivism. James Otis seemed to have
both natural law and human-made law in mind when he argued that
England’s issuing writs of assistance violated its own constitution.
In contrast with natural law, legal positivism holds that (1) law is
human-made, (2) law-makers can abolish the law, and (3) there is no nec-
essary connection between the law and morality.
In America, legal positivism’s most famous exemplar is the
Constitution of the United States of America (1787). Contrary to the
Declaration of Independence, the Constitution makes no mention of
natural law or inalienable rights. In its preamble, the Constitution justi-
fies itself “In order to form a more perfect union.” The federal legis-
lature determines the law within the guidelines that the Constitution
28 C. DREISBACH
establishes and the Constitution allows Amendment of those guidelines

(Art. V).
But is legislation solely the province of the legislative branch? Legal
realism says no.
The Constitution calls itself the law of the land and requires the legisla-
ture to make all law. But that does not always happen in practice. Much of
American law is the result of judicial decisions. The theory that recognizes
this is legal realism—the view that the law is whatever the final judge in
the matter says it is.
Legal realism’s most famous defense comes in a 1930 essay by Judge
Jerome Frank (1930). Justice Oliver Wendell Holmes (1897) had
already endorsed the idea in his essay, “The Path of Law.” And America
first sees legal realism in Justice John Marshall’s decision in Marbury v.
Madison (1803).
In 1803 William Marbury sued the Jefferson administration for fail-
ing to honor John Adams’ appointment of Marbury as a justice of the
peace in Washington, D.C. Marbury had not received the official commis-
sion before the end of Adams’ presidency, and Jefferson refused to recog-
nize the commission under his new presidency. As Jefferson’s Secretary
of State, James Madison was the defendant in Marbury’s suit. The case
went before the US Supreme Court, and Justice Marshall rendered the
court’s decision. Marshall argued that the court was the wrong venue for
the suit, since the Constitution authorized the court to hear such suits
only on appeal and there had been no earlier case for Marbury to appeal.
Historically more important was Marshall’s claim, as part of the decision,
that the Supreme Court had the right to review any legislative or executive
act for its constitutionality. In effect, the Supreme Court would have the
final say about the validity of a law. This audacious usurping of legislative
power persists to the present. If there was any protest against Marshall’s
claim, the protest was unsuccessful.
In 1897 Oliver Wendell Holmes defended legal realism, without calling
it that, in his argument that all law is merely a prediction of what the judge
will decide. Until that decision, the law is not settled.
In 1930 Jerome Frank firmly established legal realism with his fic-
tional case of the Blue & Gray Taxi Cab Company. The company is
unhappy with its state’s decision in a lawsuit that the company has filed
against another cab company and the railroad. Blue & Gray’s lawyer
suggests that the company re-incorporate in another state and re-sue
the organizations, so that the case may come before a federal court.
The federal court’s decision is favorable to the company. The law in the
first suit—the decision of the state court—has been overturned by the
law in the second suit—the decision of the federal court—without any
legislative involvement.
The consequences of legal realism for the Constitution’s stakeholders
are profound. They promise to uphold the law under the Constitution,
but their efforts are for naught if the judge’s decision ignores or abrogates
the law. For example, decisions such as Dred Scott v Sandford (1857) and
Plessy v. Ferguson (1896) affirmed the legality of segregation, which in
practice obliged police to uphold those laws, even though the court would
eventually admit that all segregation laws were unconstitutional. An offi-
cer whose moral insight was ahead of his time would be stuck between the
judicial law and constitutional law, where community practice favors the
former.
Today the debate in America between the legal positivists and the legal
realists presents itself as a debate between “strict constructionists” and
“judicial activists.” The former argue that judicial decisions should rest on
the intent of the framers of the Constitution and that their intent came
from absolute and thus unchangeable values. The latter argue that the
Constitution is a living document that judges must interpret in the context
of contemporary values and that the framers intended the Constitution to
be adaptable to change.
One way around judicial legislation lies in the constitutional Amendment
process as the Constitution prescribes it (Art. 5). The Constitution allows
for all but one proposal for change: congress may not consider a proposal
to deprive a state of its representation in the Senate. Congress may con-
sider any other Amendment to the Constitution, including a dismantling
of the Constitution itself, and if two-thirds of congress and three-fourths
of the states ratify the Amendment, it becomes law.
For people in a hurry to change the law, the Amendment process is
long and cumbersome. Some 11,000 Amendments have come before
congress; congress has approved only 33 of them; and the states have rati-
fied only 27 of them, with the 27th taking over 200 years to ratify (Agel
and Greenberg 1987, 4).
Rights
A right, for our purpose, is the freedom to do something or refrain
from doing something. For example, the Miranda warning (Miranda v.
Arizona, 1966) tells arrested people of their right to counsel; they have
30 C. DREISBACH
no obligation to seek counsel. This contrasts with a duty, responsibility,

or obligation to do something or refrain from doing something. If people
come to trial and they testify, they have the obligation to tell the truth—
they have no right to perjure themselves.
American moral discourse makes much of rights, but the concept is ambig-
uous. This chapter has side-stepped one ambiguity by limiting the meaning
of “rights” to “freedoms.” Some people might use the term to mean “inter-
ests” instead. Ethicist Peter Singer (1976), for example, holds that because
animals can suffer they have an interest in not suffering, and thus have the
right not to suffer. It would be odd to interpret this as meaning that the
animal has a freedom not to suffer. Limiting ourselves to rights as freedoms
will be sufficient for exploring the Constitution’s particular take on rights.
There are three other types of ambiguities to consider concerning
rights: inalienable rights v. conferred rights; positive rights v. negative
rights; and legal rights v. moral rights. This consideration will yield at least
eight different meanings of “rights,” as we shall see.
An inalienable right is one that no one can take away or give away. The
Declaration of Independence lists three; The US Constitution lists none.
The Declaration accepts as self-evident that “the Creator” has endowed
us with the “unalienable” rights of life, liberty, and the pursuit of happi-
ness, but this notion of inalienability has problems. First, if one does not
believe in a divine Creator, then one denies a fundamental premise of
the Declaration. Even if one believes in a Creator, one would find it hard
to prove that the Creator has endowed humans with these inalienable
rights. The Declaration avoids proof by declaring that this endowment is
self-evident, but Jews, Christians, and Muslims, for example, will not find
anything in their sacred texts that suggests God granted these rights as
inalienable. So it is not self-evidently true that “the Creator” has endowed
humans with inalienable rights.
What’s more, these rights appear self-evidently not to be inalienable. For
example, police officers appear able to revoke a citizen’s right to life, to lib-
erty, and to the pursuit of happiness. If in a justified shooting, an officer kills
a perpetrator, hasn’t the officer alienated the person’s right to life? It would
be a contradiction to object that the person’s right was inalienable, even
though the officer took it away—that is, alienated it. It would be dogmatic
to object that the person retained the right even though he lost his life.
And it would be of no help to argue the right to life is an interest, which no
one can take away, rather than a freedom, since the perpetrator in our case
appears to have renounced that interest by acting so recklessly.
The right to liberty faces the same challenge. Doesn’t any lawful arrest
of somebody remove that person’s right to liberty? Or does the person
lose the liberty, but retain the right? If the person retains the right, what
value is there to a right that the person cannot exercise?
The right to pursue happiness is even vaguer. What if someone’s pursuit
of happiness interferes with another’s? And what if this interference is
illegal or immoral? A person might consider himself happy only shooting
at passing motorists. The motorists might deem essential to their happi-
ness driving without being targets of a sniper. The sniper and the drivers
cannot pursue their happiness at the same time, so their right to do so
appears not to be inalienable. Moreover, the officer who prevented the
sniper would be acting legally and morally.
Since the Constitution does not posit any inalienable rights, contrary to
presumption of many who suggest otherwise, the Constitution does not
suffer from the challenges associated with inalienable rights.
All of the rights in the Constitution are conferred. A conferred right
is one that somebody with sufficient authority confers on another. If
this authority rescinds the right or the authority loses its ability to con-
fer that right, then that right no longer exists. All constitutional rights
and court-decided rights are conferred and thus, may be taken away. The
2nd Amendment, for example, confers the right to bear arms, but the
US government and citizenry could rescind this right through another
Amendment. The US Supreme Court case Roe v. Wade (1973) confers on
women the right to an abortion, but the Court has the power to overturn
that decision.
In addition to classifying rights as inalienable or conferred, we may clas-
sify them as positive or negative. Philosopher Isaiah Berlin (1969) makes
this distinction in his essay “Two Concepts of Liberty.” A person has a
positive right when someone else has a duty to help him exercise that
right. If you and I enter into a legally binding contract for you to buy my
house, your legal right to my house is directly connected to my duty to
give you that house within that time, provided that you fulfill your part of
the contract. In other words, you have a positive right to my house, and
you can force me legally to help you exercise that right.
A person has a negative right to the extent that no one else may inter-
fere with the exercise of that right. In Berlin’s terms, these are liberties
from coercion that interfere with the opportunity to exercise the right.
Assume that in certain circumstances I have a right to brush my teeth.
32 C. DREISBACH
When I do have this right, no one may interfere with my brushing my

teeth, but this does not oblige anyone to give me a tooth brushing.
The rights that the Declaration of Independence enumerates appear to
be negative. While no one may interfere with my right to life, liberty, or
pursuit of happiness, no one has to help me live, help me retain liberty, or
help me pursue happiness. The Declaration does claim that government
has an obligation to protect these rights, but only in the sense of prevent-
ing others from interfering with them.
Court-conferred rights may be positive or negative. Roe v. Wade does
not oblige anyone to give a woman an abortion “on demand.” It only
prevents anyone from interfering with the woman if she seeks an abortion
through the 24th week of her pregnancy. No doctor in the country will
violate a woman’s negative right to an abortion if that doctor refuses to
give the woman an abortion; thus, the right to an abortion is a negative
right. On the other hand, Miranda v. Arizona (1966), in conferring on
an arrested person a right to counsel obliges the police agency to provide
counsel if the person cannot afford one otherwise. Thus, an accused per-
son’s right under Miranda is a positive right.
The Constitution also confers both negative and positive rights. For
example, the 1st Amendment right to establish religion is negative: gov-
ernment may not interfere with it, but government need not and can-
not take steps toward establishing religion. On the other hand, the 6th
Amendment right to face one’s accuser in court is a positive right. It
obliges the prosecution to make the accuser available for public examina-
tion by the accused.
A right is either inalienable or conferred, and it is either positive or neg-
ative. It also may be legal or moral. While the Supreme Court has declared
that women have a legal right to abortion, there is disagreement about a
woman’s moral right to abortion. In other words, while abortion is legal,
it may not be moral. The 1st Amendment confers the negative right to
free speech, including speech that might be morally offensive.
What does all of this mean for the sworn official or for the unsworn
stakeholders who wish to protect and exercise their constitutional
rights? The professional has a duty to protect rights, but which rights?
And whose rights? Not the rights that the Declaration of Independence
enumerates. The American colonies broke away from England because
King George III failed to respect or protect the “unalienable” rights
of life, liberty, and the pursuit of happiness. But a sworn profession-
al’s duty frequently requires him or her to abolish these rights when
apprehending a suspect. Moreover, sworn professionals do not swear

an oath to the Declaration; they swear an oath to the US Constitution,
which enumerates no inalienable rights. Also, as a document of posi-
tive law, the US Constitution confers legal rights, but not necessarily
moral rights.
Justice
James T. Otis thought that writs of assistance were unjust, but with what
concept of justice was he working?
Typically “justice” in American conversation about the Constitution
refers to legal justice: a system in which elected representatives of US citi-
zens make law; police and other members of the executive branch of gov-
ernment execute the law; and judges preside over an adversarial system of
adjudication in criminal and civil legal complaints. All of this is supposed
to occur within the constraints of the US Constitution. Otis argued that
the justice he demanded occurred within the constraints of the English
Constitution. One way to think about justice is to divide it into three
complementary types: distributive, commutative, and retributive. Using
the example of an apple pie, let’s look at each of these three types.
I made an apple pie using only my ingredients. I grew the apples. I
purchased the flour, sugar, and cinnamon. I used my own mixing bowls
and pie tins. And I baked the pie in my oven, which is in my home, which
sits on my land. Who has a right to some or all of this pie? This is a ques-
tion of distributive justice. There are three theories of distributive justice:
libertarianism, utilitarianism, and egalitarianism.
Libertarianism claims that since I made the pie, I can do whatever I
want with it. No one —not even a starving person—has a moral or legal
claim to a piece of this pie. The Declaration of Independence sounds liber-
tarian in declaring people’s inalienable right to life, liberty, and the pursuit
of happiness.
Libertarians would argue, for example, that government has no right to
tax my earnings or draft me into the military against my will, since these
would mean taking what is mine for the purpose of others without my
consent.
Opponents of libertarianism note that I would not have been able to
make and enjoy my pie, without community support that includes, for
example, laws that protect property and provide public safety officials such
as firefighters. As John Stuart Mill (1859) puts it, “Everyone who receives
34 C. DREISBACH
the protection of society owes a return for the benefit” (Chap. 4). Thus, I
owe something to others for the privilege of making what I wish to make.
In this spirit, the utilitarian theory of justice claims that I must dis-
tribute my pie so as to ensure the greatest good for the greatest num-
ber of stakeholders. But how many people deserve a piece of the pie?
Theoretically, I could break down the pie into thousands of crumbs and
distribute one crumb per person. Since no measurable good would come
from this, it cannot be what the utilitarian has in mind. So what is the
smallest piece of pie that would constitute a good enough piece? How
many pieces of that size can I produce? And who among the many claim-
ants has “first dibs” on those pieces? Utilitarianism has no ready reply,
which makes meting out this sort of justice difficult. However, this may
not mean that utilitarianism is wrong.
Opposed to libertarianism and utilitarianism, egalitarianism, claims
that everyone with an interest in the pie has an equal right to a just serv-
ing. All else being equal, a just serving would be of equal size no matter
who is to receive it. But who gets pieces if there are more deserving people
than there are adequately sized pieces?
A sworn professional’s direct interest in distributive justice is two-fold.
First is to distribute his or her talents and services fairly. A textbook exam-
ple finds the police officer having to choose between helping a wounded
victim and chasing the assailant. Which is the more just distribution of the
officer’s time and effort? To do what will most benefit him? To do what
will result in the greatest good? To treat all parties equally?
A second interest of sworn professionals in distributive justice is to
enforce the community’s laws concerning distribution. For example, it
is against the law to steal someone else’s property. Distributive justice
requires that people be protected from theft of their property, that sto-
len property be recovered if possible, and that victims be compensated
for the loss. To these ends sworn professionals promote distributive jus-
tice by making laws that protect property, being vigilant for violations of
law, discouraging violations through the police presence, responding to
complaints about violations, and adjudicating formal charges of property
rights violations.
Commutative justice is about formal and informal contracts. On one
theory of commutative justice, “a deal’s a deal.” If two parties have agreed
to a transaction, and each is able to fulfill its end of the bargain, then jus-
tice demands that each do so. On another theory of commutative justice,
a deal may be invalid in light of other considerations.
For sworn professionals, commutative justice rests primarily on the social

contract that they have made with the community through the oath to the
Constitution and the laws of the community. Under this contract, it would
always be unjust for a sworn professional to act unconstitutionally. Thus,
for example, the US Supreme Court declared unconstitutional a New York
ordinance permitting wiretaps in an attorney’s office for 60 days (Berger
v. New York, 1967). In this case, the part of the contract that required a
New York police officer to enforce that law was invalid, and the officer
should have disobeyed it. The community must also fulfill its part of the
contract, and it fails to do so when it impedes criminal justice professionals’
attempts to do their duty. This may happen, for example, when a close-knit
community hides a fugitive from police officers seeking to arrest him.
If someone acts distributively or commutatively unjust, what is the
proper recourse? This is a matter of retributive justice. Suppose the law
says that I must give 10 % of my apple pie to a food bank in order to help
feed the poor, but on libertarian grounds, I refuse to obey the law. Do
police have the right to force me to give up a piece of the pie? If I have
eaten the pie, does the government have the right to force me to make
another one? Or suppose someone with no legal or moral claim to my pie
has stolen it from the windowsill where it was cooling. Does that person
owe me another pie? The monetary equivalent of that pie? Should that
person be jailed or have a hand amputated for the offense? Or suppose I
agreed to make a pie for you, but failed to produce one by the deadline
upon which you and I had agreed. You are out no money and your physi-
cal well-being is none the worse. Should the law intervene and force me
to compensate you in some way?
What one feels about retributive justice depends on what one feels
is the proper purpose of punishment. In the USA we often speak as if
the proper purpose were rehabilitation, although our penal system often
works against rehabilitation and the public seems content just to have
the offender off the streets. Other purposes that punishment might serve
include preventing the offender from offending again, revenge, restitu-
tion, deterring others from committing a similar offense, or various com-
binations of these purposes.
Since the Declaration of Independence emphasizes individual rights
and the Constitution emphasizes the collective good—while preserving
certain individual rights in the bargain—it is arguable that the Declaration
favors libertarian justice while the Constitution favors utilitarian justice.
36 C. DREISBACH
In light of these distinctions concerning theories of law, rights, and

justice, consider the following examples of questions aimed at Level 7 of
constitutional literacy
• Which of the following theories about law applies to the US Constitution?

• Natural Law Theory: law is given to humans by a higher power, law
and morality walk hand-in-hand, and this law includes natural rights.
• Legal Realism: law is whatever the courts say it is, there is no neces-
sary connection between law and morality, and this law does not confer
inalienable rights.
• Legal Positivism: law is whatever the legislature says it is, there is no
necessary connection between law and morality, and the law does not
confer inalienable rights.
• Legal Predestinationism: law evolves inevitably toward democracy and
free market economies, law and morality walk hand-in-hand, and the
law confers inalienable rights.
Legal positivism, as discussed above.
• Which of the following theories about rights applies to the US

Constitution?
• All legal rights are conferred and may be removed either by the confer-
ring authority or by that authority’s loss of power.
• Some rights are inalienable and may be removed by legitimate legal
authority.
• All rights are inalienable and, thus, cannot be given away or taken
away.
• None of these
All legal rights are conferred and may be removed either by the confer-
ring authority or by that authority’s loss of power.
• Which of the following theories about rights applies to the Constitution?

• There are positive rights, which entail obligations on the part of others
in order to exercise those rights.
• There are negative rights, which require only that one be left alone in
order to exercise those rights.
• Both
• Neither
Both
• Which of the following types of justice is reflected in the Constitution?

• Distributive justice, which pertains to the just distribution of goods and
services.
• Commutative justice, which pertains to just contracts and fulfilment
of contracts.
• Retributive justice, which pertains to just punishment for violation of
commutative or distributive justice.
• All three
All three.
Level 8: Familiarity with the more arcane debates about, for example, the
history and nature of constitutional interpretation.
At this level one finds a great deal of disagreement, not because one
or the other party is constitutionally illiterate, but because of philo-
sophical or political differences. Thus, it is fair to call both Justice
Scalia (2012) and Justice Breyer (2006) constitutional scholars, yet
they frequently disagree on the meaning of key constitutional passages
or of their application to a specific court case. Scalia believes that in
applying the Constitution to a legal case, the justices should deter-
mine the original meaning of the constitutional provision and stay
as faithful to that as possible. This view is one type of “originalism”;
another type holds that justices should abide by the original intent of
the Constitution’s framers. Breyer on the other hand believes that the
Constitution is a living document whose primary purpose is to ensure
the liberty of people in their own time. Because those times change,
one’s interpretation of the Constitution must change correspondingly.
In this same vein, it is interesting to note how dissenting opinions in
Supreme Court decisions have often become the majority’s opinion in
subsequent decisions (Urofsky 2015). This is a point in favor of the liv-
ing constitutionalists such as Breyer, although this by no means settles
the matter.
At Level 8 one also finds debate about the quality of the Constitution
itself. Thus, William Gladstone (1878) said that the Constitution is “The
38 C. DREISBACH
most wonderful work ever struck off at a given time by the brain and
purpose of man,” while Thurgood Marshall said that the Constitution
was “defective from the start, requiring several amendments, a civil war,
and momentous social transformation to arrive at what we have today”
(cited in Taylor 1987). Ben Franklin (1787) said that the Constitution is
“Imperfect, but as close to perfection as human beings could achieve.”
George Washington (1788) declared the Constitution “little short of a
miracle.”
Example questions could be derived from any of these theories about
or assessments of the Constitution.
SUMMARY
This chapter has explored the nature of constitutional literacy. It opened
with an account of James T. Otis’s courtroom attack on writs of assistance
and noted John Adam’s claim that this was the tipping point from general
colonial loyalty to the crown to general colonial support for a revolution.
We also noted the close connection between the hatred of writs of assistance
and the demand for the 4th Amendment requiring that courts issue war-
rants only given probable cause. The point of this account for the purposes
of the chapter was to give an example of the possibilities of constitutional
literacy that extend beyond knowledge of the Constitution’s anatomy.
Next, we considered several definitions of constitutional literacy. Our
working definition is that constitutional literacy means knowledge of the
Constitution sufficient to invoke it accurately. This invocation may be ver-
bal or may be implied in certain public or civic acts, such as voting. An alter-
native definition regards constitutional literacy as the ability to study the
Constitution. Other definitions include some that focus on knowledge of
the Constitution’s anatomy and physiology, its ancestry and legacy, or the
specific rights that the Constitution confers. Still other definitions focus on
civic activity whose success depends on the agent’s constitutional literacy.
Given the many possible definitions, we paused to consider what sort of
definition we hoped for, recognizing that our working definition is stipula-
tive, but agreeing that a more helpful and complete definition would be
ostensive—one we derive by pointing to examples of what constitutional
literacy is and, in a subsequent chapter, what it is not. One way to frame
examples of constitutional literacy is to locate these examples within one or
more of eight levels, in ascending order of quantitative complexity relative to
the knowledge of the Constitution’s basic anatomy. We distinguished each
level by a brief description and examples of what one might be expected to

know at this level. Along the way, we added some information that might
enhance the reader’s constitutional literacy.
In the next chapter, we continue our development of an ostensive defi-
nition of constitutional literacy by considering what it is not, that is, by
considering examples of constitutional illiteracy. The primary purpose of
that chapter will be to demonstrate the lack of constitutional literacy and
thus to offer one argument for this book.
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schooling.com, September 26. http://familystyleschooling.com/2015/09/26/
constitutional-literacy-what-does-it-really-mean/.
Taylor, Stuart. 1987. Marshall sounds critical note on bicentennial. New York
Times May 7, B18.
Thomas, Aquinas. 1920. The Summa theologica of Thomas Aquinas. Vol. 1.
Translated by the Fathers of the Dominican Province. London: Burns Oates &
Washbourne. Originally published c. 1250.
Tushnet, Mark. 2012. Constitutional literacy outside the courts. Keynote address.
2012 Rothgerber Conference, November 29. https://www.youtube.com/
watch?v=HhvsQxqG3-A&list=PLwFq2GL-i5Ujh9_m9Z9H0OBeqJn6ff7AF
&index=1.
Urofsky, Melvin. 2015. Dissent and the Supreme Court: Its role in the court’s history
and the nation’s constitutional dialogue. New York: Pantheon.
Washington, George. 1788. Letter to Lafayette, February 7. http://founders.
archives.gov/documents/Washington/04-06-02-0079. Accessed 22 Jan 2016.
CHAPTER 3
The Lack of Constitutional Literacy
INTRODUCTION: HELLER AND THE 2ND AMENDMENT

One of the more oft-cited constitutional amendments in public conversa-
tion is the Second: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms shall not be
infringed.”
The apparent ambiguity of its precise meaning is at the heart of many
a heated discussion, especially as reports of mass shootings, gun-related
homicides, and accidental shootings in the USA appear in the news daily.
Indeed, while possession and use of guns are at the heart of a debate over
the scope and limits of the 2nd Amendment, note that it does not limit
“arms” to guns—the Amendment could refer to any weapon whatsoever.
For now, let us limit the subject to guns.
In the debate over the scope and limits of this Amendment one extreme
would include anyone who claims the 2nd Amendment gives an absolute
right to bear arms. Anyone claiming this would be displaying some degree
of constitutional illiteracy. From a constitutional point of view, no right
is absolute. The Constitution itself, and all the rights it acknowledges or
grants, can be abrogated if two-thirds of Congress and three-fourths of
the states agree, resulting in an Amendment to that effect.
Leaning toward this extreme are those who promote severely limited
restrictions on gun ownership. There appears to be little objection, for
example, to preventing people convicted of certain crimes from owning
guns. Nor is there widespread objection to preventing young children or

DOI 10.1057/978-1-137-56799-4_3
44 C. DREISBACH
adults with certain mental disabilities from using or owning guns. People
on this side of the debate generally call for gun ownership to be allowed
unless the government can show cause for any restriction it imposes. One
of the more famous examples of this position, typically associated with the
National Rifle Association (NRA), is a speech that its then-president, actor
Charlton Heston, gave at the 129th NRA convention in 2000:
For the next six months, Al Gore [at that time Vice President and presiden-
tial candidate] is going to smear you as the enemy. He will slander you as
gun-toting, knuckle-dragging, bloodthirsty maniacs who stand in the way
of a safer America. Will you remain silent? I will not remain silent. If we are
going to stop this, then it is vital to every law-abiding gun owner in America
to register to vote and show up at the polls on Election Day. So, as we set
out this year to defeat the divisive forces that would take freedom away, I
want to say those fighting words for everyone within the sound of my voice
to hear and to heed, and especially for you, Mr. Gore: [holding a rifle aloft]
‘From my cold, dead hands!’ (cited in Dao 2000)
On the other extreme would be those who prohibit all guns, the 2nd
Amendment notwithstanding. Anyone advocating at this extreme in the
USA would, like his counterpart above, be exhibiting constitutional illiter-
acy—or disregard for the Constitution—since the 2nd Amendment clearly
acknowledges some right to bear arms.
Leaning toward this extreme are pacifists who may support use of guns
for hunting, for example, but believe that the government should deci-
sively protect people from gun violence by imposing severe legal limits on
gun ownership and use (Atwood 2012).
In between the two extremes come views exhibiting various levels of
support for gun ownership and, especially for us, constitutional literacy.
Merely taking one side or the other is insufficient evidence of one’s consti-
tutional literacy, as even the most literate, such as the US Supreme Court
justices, disagree on the scope and limits of the 2nd Amendment. This is
evident from the majority and dissenting opinions in District of Columbia
et al. v. Heller (2008).
Dick Heller, a special policeman in the District of Columbia, sought to
register a handgun that he planned to keep at home. The District declined
his request. This was in keeping with the District’s strict gun laws that
prohibited carrying unregistered guns and required lawful owners of
handguns, when those guns were at home, to keep them unloaded and
either dissembled or locked.
THE LACK OF CONSTITUTIONAL LITERACY 45
Heller sued the District claiming that its law violated his 2nd Amendment
right to have an unlicensed firearm in his home and to have that gun
be functional. The first court to hear the case, a district court, dismissed
Heller’s suit. Heller appealed to the D.C. circuit court, which found for
Heller, agreeing with Heller’s premise that the DC law was too restrictive
in light of the 2nd Amendment. The District appealed to the US Supreme
Court, which heard the case and decided for Heller in a 5–4 decision.
Writing for the majority, Justice Antonin Scalia claims that the
Amendment’s prefatory clause, “A well regulated Militia, being neces-
sary to the security of a free state,” does not limit the scope of the opera-
tive clause, “the right of the people to keep and bear arms shall not be
infringed.” Thus, Scalia claims, there is a clear constitutional right for indi-
viduals to bear arms, at least to the extent that Heller wishes to exercise
that right. In making this argument, Scalia cites court cases that he argues
have drawn similar conclusions, state constitutions that support the major-
ity’s interpretation, and scholarship on the issue from the ratification of the
Constitution through the nineteenth century. Scalia also notes that some
limits on possession and use of handguns are constitutional, but not the
restrictions that Heller faced. For our purposes, the key point is the find-
ing that, references to the militia notwithstanding, the 2nd Amendment
grants individuals the right to bear arms, militia or not.
In a dissenting opinion, Justice John Paul Stevens agrees that the 2nd
Amendment may confer an individual right as well as a collective right,
but he argues that a fact alone does not clarify the scope of the right. For
example, the 2nd Amendment does not confer the right to use a gun to
rob a bank. Calling on the precedent set in States v. Miller (1939), Stevens
notes that the Court supported the prohibition of sawed-off shotguns and
in that finding noted that the primary purpose for the 2nd Amendment
was to protect the military use of guns by communities resisting govern-
ment tyranny and that in the absence of such tyranny, legislatures had con-
siderable authority to regulate civilian use of guns. Also, contrary to Scalia,
Stevens argues that the prefatory clause of the 2nd Amendment limits the
scope of the operative clause. That is, according to the 2nd Amendment,
one has a right to bear arms in order to maintain a militia. In sum,
When each word in the text is given full effect, the Amendment is most
naturally read to secure to the people a right to use and possess arms in
conjunction with service in a well-regulated militia. So far as appears, no
more than that was contemplated by its drafters or is encompassed within its
46 C. DREISBACH
terms. Even if the meaning of the text were genuinely susceptible to more
than one interpretation, the burden would remain on those advocating a
departure from the purpose identified in the preamble and from settled law
to come forward with persuasive new arguments or evidence.
Stevens retired from the Court in 2010. In 2014, Stevens (2014) pro-
posed six Amendments to the Constitution, including adding five words
to the 2nd Amendment: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms when
serving in the Militia shall not be infringed” (142; Stevens’ emphasis). So
far there has been no official action on Stevens’ proposals.
Justices Souter, Ginsberg, and Breyer, joined in Stevens’ dissent in
Heller. All four also joined in Breyer’s dissent. Breyer offers two arguments
against the majority. First, he agrees with Stevens that, in Breyer’s words,
The Second Amendment protects militia-related, not self-defense-related,

interests. These two interests are sometimes intertwined. To assure 18th cen-
tury citizens that they could keep arms for militia purposes would necessarily
have allowed them to keep arms that they could have used for self-defense
as well. But self-defense alone, detached from any militia-related objective,
is not the Amendment’s concern.
Second, for Breyer,
The protection the Amendment provides is not absolute. The Amendment

permits government to regulate the interests that it serves. Thus, irrespec-
tive of what those interests are—whether they do or do not include an inde-
pendent interest the majority’s view cannot be correct unless it can show
that the District’s regulation is unreasonable or inappropriate in Second
Amendment terms. This the majority cannot do.
Basic logic sides with Scalia on this point. The argument of the 2nd
Amendment—the only constitutional Amendment that contains its own
argument—can be put as follows: if people have a right to a militia, then
people have a right to bear arms. People have a right to a militia. Therefore,
people have a right to bear arms.
Let M=people have a right to a militia. Let B=people have a right
to bear arms. The form of the argument is, if M, then B. M, therefore,
B. This reflects the elementary valid argument form modus ponens, from
Latin “the method of affirming by affirming.” Any argument of this form
starts with a hypothetical sentence of the form, if p, then q. The first part
of such a sentence—in this case, p—is called the antecedent, because it

comes first. The second part, q, is the consequent. The second premise
affirms the antecedent, p, and the conclusion affirms the consequent, q.
An argument with this form is always valid, that is, if the premises are true,
the conclusion must be true.
While logic offers different methods of demonstrating the validity of
modus ponens, a couple of examples should suffice here: (1) If Rex is a dog,
then Rex is a mammal. Rex is a dog. Therefore, Rex is a mammal. (2) If
it is Sunday, then the store is closed. It is Sunday. Therefore, the store is
closed. In (1) it is true by definition that if Rex is a dog, Rex is a mam-
mal. So if Rex is a dog, as the second premise asserts, then Rex must be
a mammal, as the conclusion asserts. The first premise in (2) may or not
be true, depending on the store and the local laws or customs. But if the
first premise is true and, as the second premise asserts, it is Sunday, then
the conclusion must be true—the store must be closed. In any argument
of the form modus ponens, it is logically impossible for the premises to be
true and the conclusion to be false at the same time.
Just so with the 2nd Amendment. Its antecedent is “People have the
right to a militia” and its consequent is “People have the right to bear
arms.” Thus,
(i) If people have a right to a militia, then people have right to bear arms.
(ii) People have a right to a militia.
(iii) Therefore, people have a right to bear arms.
But note that this argument does not say that one has a right to bear
arms, only if one has a right to a militia. To interpret this argument this
way is to commit the fallacy of denying the antecedent. Consider our two
examples: (1) and (2).
Starting with “If Rex is a dog, then Rex is a mammal,” let the second
premise now be “Rex is not a dog.” It’s tempting to conclude that Rex
is not a mammal, but this is not necessarily true. Suppose Rex is a cat.
Then it is true that If Rex is a dog, then Rex is a mammal; and it is true
that Rex is not a dog; but is false to conclude that Rex is not a mammal.
As a cat Rex is a mammal. For any argument where it is possible that the
premises are true and the conclusion is false, that argument is invalid, and
thus illogical. Similarly, start with “If it is Sunday, then the store is closed,”
then let the second premise be, “It is not Sunday.” Again it may be tempt-
ing to conclude that the store is not closed. But the store could closed for
many reasons other than the day of the week. Perhaps the proprietor is on
48 C. DREISBACH
vacation or the store is also closed on Tuesdays. In form, here is the dif-
ference between the valid modus ponens and the invalid fallacy of denying
the antecedent.
Modus Ponens Fallacy of Denying the Antecedent
If P, then Q If P, then Q
P Not P
Therefore, Q Therefore, not Q
Note again that in the valid form, the second premise asserts the anteced-
ent of the first (P); in the fallacy, the second premise denies the antecedent
(P), which tells us nothing about the consequent.
Back to the 2nd Amendment. Some proponents of gun control argue
that the 2nd Amendment grants the right to bear arms only to the extent
necessary to exercise the right to a militia. Thus, while a community may
have the right to an arsenal as a protective measure against government tyr-
anny, for example, the Amendment does not confer on individuals the right
to bear arms. This appears to be the view of the minority in Heller. But this
view commits the fallacy of denying the antecedent. The 2nd Amendment
does not say “Only for the purposes of a militia do people have the right
to bear arms” just as example (1) does not say, “Only if Rex is a dog is Rex
a mammal” and example (2) does not say “Only if it is Sunday is the store
closed.” Many types of animals may be mammals, and there may be many
reasons why the store is closed. So too there may be many reasons why
people have the right to bear arms, not just to maintain a militia.
Note that the Constitution does not acknowledge any other right as
the conclusion of an argument: in all other cases the Constitution simply
asserts the right or promises that the government will not infringe the
right. Perhaps this lends extra weight to the prefatory clause of the 2nd
Amendment. But it also reminds us that the Constitution is its own author-
ity and expresses no need for further argument to confer or deny a right.
In Heller, the Court split along conservative (the majority in this case)
and liberal lines. But these labels do not settle the matter. In 1991, former
Chief Justice Warren Burger (cited in Newman 2013; also see Kopel 1999),
a conservative, referred to the argument of the National Rifle Association
(NRA) that the 2nd Amendment grants individuals the right to bear arms as
“one of the greatest pieces of fraud, I repeat the word fraud, on the American
people by any special interest group that I have ever seen in my lifetime.”
While Heller limits its decision to the use of a gun for self-defense in
one’s home, the NRA claims a broader decision, including the right to
own and use assault weapons. For law professor Burton Newman (2013),
the public’s failure to call out the NRA on its exaggeration, and hence,
“propaganda,” suggests the ordinary citizens’ lack of constitutional under-
standing—in our words, constitutional literacy. Burton wonders,
How can the American people be educated to understand the true meaning
of the Second Amendment consistent with the Supreme Court’s interpreta-
tion of that Amendment? Such an education process could lead to sweeping
reform of state and federal regulation of firearms. But how is the mindset
of the American people to be changed? The same way our mindset about
drunk driving and smoking changed over time. … [I]t is the education of
the citizenry and the education of our lawmakers that is necessary in order
for the calculated messaging of the NRA to be known for what it is: Lies,
myths and fictions that have harmed and killed our citizens and will con-
tinue to do so until an enlightened view of the very limited scope of Second
Amendment rights is known, understood and acted upon.
Newman thus gives us an argument for this chapter, in which we con-

sider the evidence for lack of constitutional literacy, or put another way,
evidence of constitutional illiteracy.
PERVASIVE CONSTITUTIONAL ILLITERACY: EVIDENCE

Our working definition of constitutional literacy says that it is knowledge
of the Constitution sufficient to invoke it accurately. This invocation may
be verbal or implicit in one’s actions. The amount of constitutional literacy
necessary to the task will vary according to the complexity of the task, start-
ing with the anatomy of the Constitution; its physiology, evident primarily
in constitutional law; its ancestry; and its legacy. In looking for evidence of
constitutional literacy, we will limit ourselves to situations where one would
expect literacy. Here it is useful to distinguish between lack of knowledge
and ignorance. All of us lack knowledge in many areas that are not impor-
tant to us. I don’t know how to operate a tank; I don’t know how to raise
crops on the Pampas; and I don’t know how to speak Ho-chunk. It might
be fun to know these, but it would not help me fulfill my responsibilities or
exercise my rights as a priest, a professor, a father, a grandfather, a husband,
a friend, or a citizen. On the other hand, if I claimed to know them when I
don’t I would be showing ignorance. In short, ignorance exists where one
50 C. DREISBACH
claims to know something that one does not know. Lacking knowledge
about something and admitting that lack are not ignorance.
This chapter’s focus is on claims to know the Constitution by people
who do not know it to the extent they claim. This includes people who
promise to protect the Constitution, but don’t know it sufficiently to assess
how well they are keeping their promise. It includes people who have not
sworn an oath to the Constitution but who go about their civic lives acting
as if they knew the Constitution when they don’t. And it includes people,
both sworn and non-sworn, who cite the Constitution incorrectly.
Evidence for constitutional illiteracy could fill a book. This chapter seeks
to include enough to show that such illiteracy exists to an extent requiring
some remedy to enhance professional public life and private civic life.
Evidence of constitutional illiteracy comes from at least four sources:
anecdote, including the examples that introduce Chap. 1 of this book;
studies and writings on the subject; lack of adequate coverage of the
Constitution in basic police training; and a test I have given students in
my course, Applied Ethics, the Constitution, and Leadership.
Anecdote
Recall the examples from Chap. 1. Sworn government officials who
have confused the Declaration with the Constitution include congressio-
nal leaders such as John Boehner and Nancy Pelosi; governors, such as
Sarah Palin; and judges, such as Arenda Wright Allen. Secretary of State,
Alexander Haig, got the presidential succession wrong. This is a more
“sophisticated mistake,” perhaps, but not an acceptable one for a sworn
official who is high up in that succession. Chap. 1 also cites examples of
non-sworn opinion leaders, including Jerry Falwell and Rush Limbaugh,
confusing the Declaration with the Constitution.
To these examples we may add Secretary of State Condoleezza Rice’s
claim that Jefferson wrote the Constitution: “My ancestors in Mr. Jefferson’s
Constitution were three-fifths of a man” (cited in Boaz 2006). US Senator
Dick Durbin (cited in Milbank 2006) made the same mistake:
There have been only seven acts of flag desecration annually in America
in the last six years, so to argue that we have this growing trend toward
desecration and burning our flag defies the facts. In fact, it rarely, if ever,
happens. And so why are we about to change the handiwork and fine con-
tribution to America of Thomas Jefferson?
During the Constitutional Convention, Jefferson was in Paris repre-

senting America.
More recently, Michael Scherer (2015), Time magazine’s Washington
Bureau Chief, referring to the Constitution, wrote,
James Madison warned his nascent nation of ‘the superior force of an inter-
ested and overbearing majority.’ To remedy this, America’s founders forged
a union with safeguards: due process of law, inalienable individual rights
and a byzantine electoral system that intentionally slowed popular fury and
change. (106; my emphasis)
While the Declaration of Independence presumes the existence of

inalienable rights, these were not part of what the founders “forged” when
they developed the US government. To repeat, the Constitution makes no
mention of inalienable rights and the rights that the Constitution recog-
nizes are alienable.
Research and the Popular Press

If America’s sworn officials and opinion leaders incorrectly invoke the
Constitution, and the majority of witnesses apparently fail to catch the
mistake, then we have evidence of a pervasive constitutional literacy on
these facts alone. This evidence also appears in research and in the popular
press. For example, journalist Husna Haq (2015) reports that in 2011
a survey by The University of Pennsylvania’s Annenberg Public Policy
Center “found that just 15 percent of Americans could identify the chief
justice of the US Supreme Court as John Roberts, only 13 percent knew
the U.S. Constitution was signed in 1787, and only 38 percent were able
to name all three branches of government.”
Law professor Ilya Somin (2004; see also 1998) has much to say about
voter ignorance, offering empirical evidence that implies pervasive consti-
tutional illiteracy.
The most important point established in some five decades of political

knowledge research is that the majority of American citizens lack even
basic political knowledge. To borrow the terminology of political scientist
Stephen Bennett, almost one-third of American adults are political “know
nothings” who possess little or no useful knowledge of politics. For pres-
ent purposes, it is important to stress that the majority of citizens lack basic
“rules of the game” knowledge, information about which public officials
52 C. DREISBACH
and agencies are responsible for what issues. For example, the majority of
American adults do not know the respective functions of the three branches
of government, who has the power to declare war, or what institution con-
trols monetary policy. A related problem is that citizens are often ignorant
of which political party controls what institutions of government. A survey
taken immediately after the November 2002 congressional elections found
that only about 32 % of respondents knew that the Republicans had held
control of the House of Representatives prior to the election. This result
is consistent with research showing widespread ignorance of congressional
party control in previous elections. (1304–1305)
In 2012, The University of Boulder Colorado Law School hosted the

Twentieth Annual Ira C. Rothgerber Jr. Conference, whose theme was
“Public Constitutional Literacy.” In 2013, the Denver University Law
Review dedicated one of its quarterly issues to papers from the Rothgerber
conference (Hart 2013). Together, these papers offer strong evidence for
the lack of constitutional literacy, especially among the citizenry; examine
efforts to improve it; and offer suggestions for further improvement. Law
professor Melissa Hart (2013) describes law professor Mark Tushnet’s key-
note address, as pointing to “myriad evidence demonstrating a widespread
lack of public knowledge about the Constitution and the legal system”
(826). Several of the papers focus on the American University Washington
College of Law’s Marshall-Brennan Constitutional Literacy Project, which
Chap. 2 mentions. This project has law school students teaching civics and
the Constitution in the public high schools. The project has had a positive
effect on the law school students, leading more of them than usual to prac-
tice public interest law (Waters and Addington 2013). The project has also
had a positive effect on the high school students, leading them to greater
civic engagement than usual (Ahranjani et al. 2013; Raskin 2013). At the
same time, these programs have struggled with sustainability (McNabb
2013). These papers demonstrate a need to improve constitutional literacy
and address an effort to do so, thus providing both evidence for lack of
constitutional literacy and hope for improvement.
One paper that stands out in the collection of the Rothgerber papers
addresses the problem of constitutional illiteracy among jurors (Royal
and Hoffman 2013). The authors also propose a quick tutorial on the
Constitution for every jury before the trial begins. This is an interesting
proposal to which we will return when considering ways to improve con-
stitutional literacy (Chap. 6). Here we may note further proof of the poor
state of public constitutional literacy at present.
Police Basic Training

The Annenberg and Rothgerber examples, along with Somin’s articles
demonstrate pervasive constitutional illiteracy among the citizenry who
are generally non-sworn but frequent participants in public life. Our
opening examples show sworn officials exhibiting constitutional illiteracy.
Further evidence of lack of constitutional literacy among sworn officials
emerges from an Internet survey of police training programs across the
USA. No academy lists courses on the Constitution in any training other
than basic training. The available evidence we seek, then, comes from
public statements about basic training. This evidence does not prove the
illiteracy of individual police officers, since they may have acquired that
literacy outside of their academy training. But the evidence does suggest
a lack of adequate commitment to helping the recruits become constitu-
tionally literate enough to take the oath to the Constitution with sufficient
knowledge to know what they are swearing to. To be fair, a closer look at
specific course syllabi, for example, might reveal more of a commitment
to constitutional literacy than the official public statements suggest. But
since these public statements are the first stop for anyone seeking knowl-
edge about the basic training, one can assume that these statements are
adequate demonstrations of the academies’ commitment—or lack of com-
mitment—to constitutional literacy
I was able to find at least one web site for each state in the USA. The
address for each web site appears in the reference list at the end of this
chapter, under the entry “Police Basic Training Websites.” This list also
includes the two-letter postal codes for each state, codes that appear in
the following summary. Thirty-five sites come from state wide agencies or
commissions, including
• A Peace Officer Standards and Training Commission or state train-

ing commission under another title (AL, CA, CT, ID, MD, MS, NV,
NJ, PA, TN)
• A state department of law enforcement or department of criminal
investigation (AR, FL, IL, IN, IA, KS, MA, NM, OK, SD, WY)
• A state department of justice or department of criminal justice (KY,
ME, MT, NY, NC, VT, VA, WA)
• A state department of public safety (GA, NH, OR, RI)
• A state code (DE)
• A state police academy (SC)
54 C. DREISBACH
Two sites come from regional agencies: Honolulu PD (HI) and St. Louis
County PD (MO). The remaining 13 sites come from colleges or universi-
ties with state-approved police basic training programs (AK, AZ, CO, LA,
MI, MN, NE, ND, OH, TX, UT, WV, WI).
For each site, I looked, where possible, for the length of the training;
courses or units with “Constitution” in the title; course or unit descrip-
tions that include a reference to the Constitution, even though the course
or unit title does not; and the percentage of the program that thus appears
to cover the Constitution.
Length
Thirty-eight states list their basic training requirements in term of hours.
Seven states (AR, DE, HI, ID, NJ, SC, UT) list their requirements in terms
of weeks. Five states (AK, AZ, CO, MN, and ND) list their requirements
in terms of credits. For the purposes of this chapter, let us assume that a
credit is 15 hours of class time and 30 hours of homework, for a total of
45 hours per credit: this is the federal standard. Also for the purposes of
this argument, let us assume a week is equivalent to 40 hours. We then get
the following results (Table 3.1).
The range of hours is 360 (LA) to 1813 (MA). South Dakota is an out-
lier with a 60 credit program that on our formula translates to 2700 hours.
Table 3.1 Hours of police basic training by state (p. 54)

State Hours State Hours State Hours State Hours State Hours
AL 520 HI 880 MA 1813 NM 657 SD 520

(22 wk)
AK 720 ID 1215 MI 740 NY 649 TN 400
(16 cr) (27 cr)
AZ 1350 IL 480 MN 1350 NC 620 TX 643
(30 cr) (30 cr)
AR 520 IN 600 MS 400 ND 2700 UT 1280
(13 wk) (60 cr) (32 wk)
CA 664 IA 388 MO 600 OH 588 VT 817
CO 1350 KS 560 MT 480 OK 576 VA 810
(30 cr)
CT 871 KY 888 NE 607 OR 640 WA 720
DE 880 LA 360 NV 679 PA 750 WV 1200
22 wk
FL 770 ME 720 NH 1280 RI 870 WI 518
GA 408 MD 1040 NJ 880 SC 480 WY 519
(22 wk) (12 wk)
In calculating the mean and median, I have omitted South Dakota. The
mean number of hours is 760. The median number of hours is 664.
“Constitution” in the Course or Unit Title

Ten states require a course or unit with “Constitution” in the title, including
CT, IN, KS, KY, MD, MN, MO, NV, NC, and UT.
North Dakota lists a course on the Constitution as an elective.
• Constitution: ND (elective); UT
• Constitutional Issues: KY
• Constitutional Issues in Criminal Processes: MN
• Constitutional Law: CT, KS, MD, MO, NV, NC
• Constitutional Provisions in History: IN
“Constitution” in the Course or Unit Description

The sites of 15 states include “Constitution” in a course or unit descrip-
tion (other than those with “Constitution” in the unit or course title):
AL, CA, CO, FL, ID, ME, NJ, NM, NY, PA, TN, TX (“Bill of Rights”),
WA, WV, WY.
The sites of 24 states, therefore, do not refer to the Constitution in the
titles or descriptions of their units or courses. Twenty of these states list
courses in which one may assume that the Constitution is a topic:
• Criminal Justice (title): WI

• Criminal Law (description): AK, AR, GA, HI, IL; (crim law of
arrests): IA, NE, OK, RI, SC, VT
• Criminal Procedure (description): DE, MT, NH,
• Evidence, Arrest, Search & Seizure (title): MS
• Law & Legal Matters (description): AZ
• Legal Aspects (title): LA, SD, VA
The sites of four states, therefore, offer no indication of their coverage

of the Constitution: MA, MI (password protected), OH, OR.
Percentage
Concerning the percentage of each basic training program that it devotes
to the Constitution, most sites express this in hours, some express it in
credits, and some express it in weeks. Translating credits and weeks into
hours, as we did above, the foregoing information yields the following
percentage (Table 3.2):
Table 3.2 Percentage of police basic training spent on the constitution (p. 55)
56
State Hours State Hours State Hours State Hours State Hours
AL 6/520 HI 79/880 MA 1813 NM 1/657 SD 73/520

1 % 9 % ? .1 % 14 %
AK 22/720 ID 12/1215 MI 740 NY 2/649 TN 21/400
C. DREISBACH
3 % 1 % ? .3 % 5 %

AZ 50/1350 IL 19/480 MN 135/1350 NC 28/620 TX 8/643
4 % 4 % 10 % 5 % 1 %
AR 36/520 IN 3/600 MS 13/400 ND 0/2700 UT 13/1280
7 % .5 % 3 % 0 % 1 %
CA 46/664 IA 18/388 MO 41/600 OH 588 VT 60/817
7 % 5 % 7 % ? 13 %
CO 51/1350 KS 21/560 MT 62/480 OK 35/576 VA 105/810
3 % 4 % 13 % 6 % 13 %
CT 4/871 KY 135/888 NE 67/607 OR 640 WA 6/720
.4 % 15 % 11 % ? .8 %
DE 79/880 LA 22/360 NV 14/679 PA 3/750 WV 135/1200
9 % 6 % 2 % .4 % 11 %
6 %
FL 8/770 ME 22/720 NH 180/1280 RI 50/870 WI 45/518
1 % 3 % 14 % 6 % 9 %
GA 34/408 MD 62/1040 NJ 3/880 SC 32/480 WY 5/519
8 % 6 % .6 % 9 %) 10 %
Concerning the 25 states (excluding VA) whose basic training sites

refer to the Constitution specifically, the range of total hours of training is
400–1710; the mean number of total hours is 496; and the median num-
ber of hours is 679.
For these same states, the range of hours spent on the Constitution is
1–135; the mean is 46 hours and the median is 13 hours.
Regarding the percentage of time spent on the Constitution, the range
is .1 %–15 %; the mean is 4 %; and the median is 2 %.
Concerning the 20 states whose sites identify topics of possible consti-
tutional relevance, but whose sites do not refer to the Constitution spe-
cifically, the range of total hours of training is 360–1280; the mean is
565 hours; and the median is 520 hours.
For these same states, the range of hours spent on constitutionally rel-
evant topics is 13–180; the mean is 54 hours; and the median is 48 hours.
Regarding percentage of time spent on the constitutionally relevant
topics, the range is 3 %–14 %; the mean is 9 %; and the median is 9 %.
The average (mean) number of hours spent on the Constitution is not
appreciably different between the 25 states who specify constitutional
courses or topics (46 hours) and the 20 states that do not (54 hours);
although the mean percentage is appreciably different: 4 % for the 25 states
and 9 % for the 20 states. This is likely due in part to the fact that courses
and units identified among the 20 states that have elements relevant to the
Constitution, such as criminal law and criminal procedure, for example,
include other elements not immediately relevant to the Constitution, such
as state codes and procedures.
If we combine the two sets of states, we find that the range of total
hours spent on basic training is 360–1710; the mean is 527; and the
median is 649.
The range of hours spent on the Constitution or relevant topics is
1–180; the mean is 50 hours; and the median is 28 hours.
The percentage range time spent on the Constitution or relevant topics
is .1–15 %; the mean is 6 %; and the median is 6 %.
In the final analysis, the figure that interests us most is the percentage
of time that police basic training dedicates to the Constitution. The mean
range is between 4 and 9 %, inclusive, with 6 % being the mean if we com-
bine the 45 states that we have identified as referring to the Constitution
either explicitly or by implication. This invites the question whether this
is enough time to prepare the graduates of the academy to take the oath
to the Constitution with sufficient literacy to understand what they are
swearing an oath to.
58 C. DREISBACH
To be sure, the quantitative question does not settle the qualitative

question: one 3 credit course may be more effective than another. Also, as
we have noted, there may be constitutional elements to the training that
do not appear expressly or by implication in the web sites’ descriptions of
the training. Moreover, the recruits require a lot of other training if they
are to be safe and successful on duty—training in the use of firearms, in
arrest procedures, and in human relations.
Still, 6 % is too little, given how central the oath is to the recruits’ pro-
fessional identity and given how rich the material on the Constitution is,
when we consider its anatomy, its physiology, its ancestry, and its legacy.
That this time spent on the Constitution is insufficient is demonstrated
further by the results of a test that 90 of my students—a vast majority of
whom are experienced police officers—have taken. This is our next bit of
evidence for the argument that constitutional illiteracy prevails.
A Test
Some evidence for the lack of constitutional literacy comes from a test that
I devised and have administered over several years under various condi-
tions. These conditions included the organization of the test and number
of questions; the people who took it; and the directions I gave them for
taking it.
Working with a pool of 275 questions, I organized the questions first
according to the eight levels that Chap. 2 discusses toward recognizing
degrees of constitutional literacy.
Level 1: The ability to distinguish the Constitution from other documents,
most notably, the Declaration of Independence.
Level 2: Knowledge of the basic history and basic anatomy of the Constitution.
Level 3: Knowledge of certain significant details from the Articles and the
Amendments.
Level 4: Knowledge of most details of each Article and Amendment and
the history surrounding its creation and ratification.
Level 5: Familiarity with the more important arguments for the various
elements of the Constitution.
Level 6: Familiarity with the more famous court cases.
Level 7: Familiarity with key disagreements about the nature of law,
rights, and justice, and which theories about each are reflected in
the Constitution as opposed, for example, to the Declaration.
Level 8: Familiarity with the more arcane debates about, for example,
the history and nature of constitutional interpretation.
Next, I re-organized the questions under four major headings: internal
themes, internal history, external themes, and external history. “Internal”
refers to the Constitution itself; “external” to events and theories relevant
to the Constitution, but not stemming from it immediately or directly. I
eliminated four questions, leaving 271. I also identified the questions as
easy, medium, or difficult based on my expectations and experiences of
students in my Constitution class over the past 15 years. In outline, the
organizational structure looks like this:
CATEGORY I: Internal Themes
(a) Distinguishing the Constitution from Other Texts: Questions

1. Easy: Questions 1–5
2. Medium: Questions 6–9
3. Difficult: Questions 10–13
(b) Requiring Reading the Constitution Only
(c) Requiring Extra Thought beyond a Reading of the Constitution, such
as Interpretation or Research
CATEGORY II: Internal History
(a) Pre-Ratification
2. Medium: Questions: 143–146
3. Difficult: Questions: 147–152
(b) Post-Ratification
60 C. DREISBACH
CATEGORY III: External Themes
(a) Directly Relevant to the Constitution

(b) Indirectly Relevant to the Constitution
CATEGORY IV: External History
(a) Pre-Ratification
1. Easy: Question 237
(b) Post-Ratification
1. Directly Relevant to the Constitution
(a) Medium: Questions 250–255
(c) Indirectly Relevant to the Constitution
In general, “easy” applies to questions one should be able to answer

after reading the Constitution for content, rather than comprehension.
“Easy” also applies to questions that are arguably a matter of conven-
tional wisdom or common sense. “Medium” applies to questions requiring
a more studied reading of the Constitution, with attention to compre-
hension of its details. “Medium” also applies to theoretical and histori-
cal details that require attention, if not study, beyond a cursory reading
of the Constitution or awareness of conventional wisdom relevant to the
Constitution. “Difficult” applies to questions requiring familiarity with
interpretations of the Constitution, definition of its more arcane terms, and
scholarly understanding of history and theories relevant to the Constitution.
In the absence of hard data the distinctions among easy, medium, and
difficult questions rested on my experience with students, my scholarship,

and my subsequent expectations of the test takers’ success in answering the
questions. The more I administer the test, the more data I acquire to sup-
port my expectations or to lead to a reassessment of a question’s difficulty
or diagnostic value. As my colleague and constitutional mentor Lawrence
Coshnear, Esq. puts it, in general, “easy” refers to the basic anatomy of the
Constitution, while “medium” and “difficult” refer to its physiology. In
addition, this physiology includes not only interpretation of and theoreti-
cal debate about the Constitution itself, especially as reflected in Supreme
Court decisions, but also the historical and political ancestry and legacy
of the Constitution. Chapter 5 discusses this organization in more detail,
finding the structure useful in assessing constitutional literacy.
Most of the people who have taken the test have been sworn officials,
usually law enforcement professionals. Most of them took it at the begin-
ning of my course, Applied Ethics, the Constitution, and Leadership, an
upper-level college course that is a requirement for the Bachelor of Science
in Organizational Leadership in Johns Hopkins University’s Division of
Public Safety Leadership. With rare exceptions, the non-sworn students
in the program also work in public safety. I also asked for volunteers from
outside the course, including friends, colleagues, and participants in work-
shops I have led in which the Constitution was one of the topics. For the
purposes of this book, I draw on information from five cohorts, totaling
90 students, all of whom took the test at the beginning of the course in
the semester they took it.
Three facts justify limiting the data pool to these cohorts. First, if
anybody should be expected to display constitutional literacy, it should
be people who have entered their profession by taking an oath to the
Constitution or people who, though non-sworn, work in public safety—
a public governed by the Constitution. Second, I was able to direct and
monitor these students in ways I could not direct volunteers. Also, this
was the third course in which I had these students, so I knew their general
academic abilities quite well. Third, for the purposes of this chapter, the
set of 90 tests provides manageable and sufficient data to indicate the lack
of constitutional literacy.
Each of these cohorts took the test at the beginning of the course. In
some cases, I gave the students a time limit—2 hours—asking them to
answer as quickly as they were able. In other cases, I imposed no time
limit, asking them to hand in their exams when they were finished. No
one took longer than 2 hours to complete the exam, whether there was
62 C. DREISBACH
a time limit or not. Many chose to stop answering the questions before
they reached the end of the exam. In some cases students wrote a note on
the exam explaining that they had run out of time. I have not looked into
why some took so much longer than others to answer the questions. In
all cases, the results point to lack of constitutional literacy, which justifies
this book’s concern.
There are at least two ways to look at the data from these exams: by
identifying and comparing the scores of the test takers and by identifying
the percentage of correct responses to each question. Let’s consider each.
Individual Scores
The cohorts combined included 75 sworn, 7 non-sworn, and 8 who did
not state whether they were sworn or non-sworn. The mean number of
attempted answers was 219 out of 271. The median number was 260. The
range of attempts was 10–271.
If one scores only by the number of attempted answers, the high score
was 93 %—that is, one student got 93 % of the questions correct of the
questions he or she attempted to answer. This student attempted to answer
56 questions and got 52 of them correct. If this student’s grade includes
all of the questions missed, then the score is only 19 % (52/271). The low
score, if one considers only attempted answers, was 16 %, but this student
attempted to answer all 271 questions and got 43 correct. The mean score
was 49 %; and the median score was 48 %.
On a straight percentage scale—where A = 90 to 100 %; B = 80 to 89 %;
C = 70 to 79 %; D = 60 to 69 %; F = 0 to 59 %—one student gets an A;
three get Bs; five get Cs; nine get Ds; 72 fail. On a standard Bell Curve
with 90 test takers, a high score of 93 and a low score of 16: one gets an
A (range: 91.46–93); three get Bs (range: 80.68–91.46); 76 get Cs (wide
range: 28.32–80.68); nine get Ds (range: 17.54–28.32), and one gets an
F (range: 16–17.54).
The C range is too wide to indicate who is constitutionally literate and
who is not. Matters get worse when one considers that with one exception
(a student who scored 75 % having answered 168 questions), all of the
scores from 73 % and higher were for students who responded to a small
number of the questions:
• 73 % score; 67 questions;


• 93 % score; 53 questions
Further, since no student who completed the exam took more than
2 hours, and the shortest time limit I imposed was 2 hours, I prefer
to count the scores earned without adjusting for a limited number of
attempted answers. That is, I prefer to score each student’s submission by
dividing the total number of questions (271) into the correct number of
answers, counting skipped questions as incorrect.
In this case, the high score was 68 % (184/271), the low score was 2 %
(5/271), the mean score was 36 % (98/271), and the median score was
37 % (100/271). On a straight percentage scale, four students get Ds; 86
students fail. On a standard Bell Curve, with 89 test takers, a high score
of 66 % and a low score of 13 % (throwing out the 2 %): three students get
an A (range: 64.94 to 66); one students gets a B (range: 57.52 to 64.94);
63 students get a C (range: 28.32 to 80.68); 18 students get a D (range:
14.06 to 21.48); and one student fails (range: 13 to 14.06), along with
the student who scored 2 %. As above, the C range is far too broad to
distinguish meaningfully those with an adequate degree of constitutional
literacy from those with an inadequate degree.
As all the test takers in these five cohorts were either sworn or non-
sworn but in public safety fields, one would hope for a higher degree of
constitutional literacy than the test scores indicate.
Correct Answers per Question

A second way to consider the evidence of the scores is to look at statistics
for the number of correct answers to the questions. For the purposes of
this summary, I collected statistics from each of four categories of ques-
tions and then reconfigured those statistics to reflect the whole exam.
Category I—Internal Themes—includes 132 questions. The average
(mean) percentage of questions answered was 78 (103/132). The high-
est percentage of correct responses for any one question, whether “easy,”
“medium,” or “difficult,” was 94:
T/F. The Constitution promotes a two-party political system.The answer
is “false.” Fifty-four students (out of 90) attempted to answer this ques-
tion. Fifty-one students answered it correctly. This question is of medium
difficulty. I was surprised at the (relatively) high percentage of students
who answered this correctly, as the two-party system today seems always
to have been part of American politics, albeit it under different party titles.
64 C. DREISBACH
The lowest percentage of correct responses for any question, regardless

of the level of difficulty, was 11:
T/F. The 4th Amendment defines “unreasonable searches and seizures.”The
answer is “false.” Seventy-one students attempted to answer this question.
Eighteen answered it correctly. This question is of medium difficulty. I
was surprised at how few answered this question correctly. Anecdotally it
appears that people know well the 4th Amendment’s reference to “unrea-
sonable searches and seizures,” and either misunderstood the question to
ask simply whether this is a topic of the 4th Amendment or incorrectly
believed that the provision includes a definition.
The mean percentage of correct responses for any one question in
Category I, regardless of the level of difficulty, was 43 and the median
was 39.
Of the “easy” questions, the highest percentage of correct responses for
any one question was 87.
Which amendment guarantees the right to bear arms?
(a) 2
(b) 3
(c) 4
(d) 7
The correct answer is a: Amendment 2. Ninety (out of 90) attempted to

answer this question. Seventy-eight got it right. That so many scored well
on this question adds relevance to the opening subject of this chapter:
Heller and the 2nd Amendment.
Of the “easy” questions the lowest percentage of correct responses for
any one question was 24:
Which Amendment prohibits states from denying equal protection or due
process of law?
(a) 5
(b) 9
(c) 13
(d) 14
The correct answer is d: Amendment 14. Eighty-nine (out of 90)

attempted to answer this question. Thirty answered it correctly.
Of the “difficult” questions the highest percentage of correct responses
for any one question was 83:
T/F. “Cruel and unusual punishment” is defined by “evolving standards of

decency.”The answer is “true” (Trop v. Dulles 1958). Fifty-eight (out of 90)
students attempted to answer this question. Forty-eight answered it correctly.
Of the “difficult,” questions, the lowest percentage of correct responses
As the Government of the United States of America is not, in any sense,
founded on the Christian religion…no pretext arising from religious opin-
ions, shall ever produce an interruption of the harmony existing between…
two countries.
(a) Treaty of Paris

(b) Treaty with the Bey of Tripoli
(c) Articles of Confederation
(d) Constitution of the United States
The answer is b: Treaty with the Bey of Tripoli (art. 9). Eighty-nine (out
of 90) students attempted to answer this question. Fourteen answered it
correctly. On the other hand, only 15 respondents (out of 89), mistakenly
thought that this passage was from the Constitution. Had the point of this
exercise been only to decide whether the excerpt is from the Constitution,
83 % of the respondents would have answered correctly.
The foregoing responses are summed up in Table 3.3.
Category II—Internal History—includes 39 questions. The average
(mean) percentage of questions answered was 60. The highest percentage
of correct responses for any one question was 87:
T/F. The immediate precursor to the Constitutional Convention was a
convention in Annapolis, 1786, whose express purpose was to discuss trade
problems with the Articles of Confederation.The answer is “true.” Sixty-nine
(out of 90) students attempted to answer this question. Sixty answered it
correctly. I consider this a difficult question, so I was surprised that so many
answered this correctly relative to the correct answers to other questions.
Table 3.3 Highest and lowest correct responses to individual questions in cate-
gory I—internal themes (p. 65)
All levels Easy Medium Difficult Mean Median
of difficulty difficulty % (all) % (all)
High % Low % High Low High Low High Low

94 11 87 24 94 11 83 16 43 39
66 C. DREISBACH
The lowest percentage of correct responses for any one question was 12:
Which one of the Constitutional delegates pronounced the Constitution
“nothing short of a miracle”?
(a) John Adams

(b) John Marshall
(c) George Washington
(d) Ben Franklin
The answer is c: George Washington (see Chap. 2). Forty-two (out of 90)
students attempted to answer this question. Five answered it correctly.
Note that 34 of the 42 respondents answered a: John Adams. I consider
this question to be of medium difficulty.
The mean percentage of correct responses for any one question, regard-
less of difficulty was 49 and the median was 49
Of the “easy,” questions, the highest percentage of correct responses
T/F. Rhode Island did not send a delegate to the Constitutional
Convention.The answer is “true.” Sixty-nine (out of 90) students attempted
to answer this question. Fifty-nine answered it correctly.
Of the “easy” questions, the lowest percentage of correct responses for
any one question was 24:
How many delegates signed the Constitution?
(a) 13
(b) 26
(c) 39
(d) 55
The answer is c: 39. Seventy (out of 90) students attempted to answer this
question. Seventeen answered it correctly.
Of the “medium” questions the highest percentage of correct responses
T/F. The 12th Amendment was prompted by the development of political
parties.The answer is “true.” Fifty-five (out of 90) students attempted to
answer this question. Forty-two answered it correctly.
Of the “difficult” questions the lowest percentage of correct responses
Which Amendment was a rebuke of the Stamp Act of 1765?
(a) 6th Amendment, which allows “an impartial jury of the State and
district where in the crime shall have been committed…”
(b) 8th Amendment, which prohibits excessive bail and excessive fines.
(c) 4th Amendment, which protects “persons, houses, papers, and effects,
against unreasonable searches and seizures…”
(d) 1st Amendment, which guarantees “the right of the people peaceably to
assemble”
The answer is a. The Stamp Act of 1765 allowed juryless trials and permit-
ted prosecutors to take colonists back to England for trial. Fifty (out of 90)
students attempted to answer this question. Eight answered it correctly.
Category III—External Themes—includes 65 questions. The average
percentage of questions answered was 49 (32/65). The highest percent-
age of correct responses for any one question was 93:
T/F. The 14th Amendment’s equal protection clause guarantees equal
treatment by the government, but not necessarily equal opportunity.The
answer is “true.” Forty-four (out of 90) students attempted to answer this
question. Forty-one got it right. This question is of medium difficulty.
On which of the following do Hobbes and Locke differ?
(a) What constitutes a state of nature?

(b) The existence of natural law.
(c) The existence of natural rights.
(d) The need for a government available 24/7.
The correct answer is d. Thomas Hobbes (1651) believed that govern-

ment must be eternally vigilant to keep society’s subjects from hurting
Table 3.4 Highest and lowest correct responses to individual questions in

category II—internal history (p. 67)
All levels of Easy Medium Difficult Mean Median
difficulty difficulty % (all) % (all)

87 12 86 24 76 12 87 16 49 49
68 C. DREISBACH
each other. John Locke (1690) believed that government would need
to get involved in personal affairs only when there was criminal or civil
challenge to someone’s right to property. Fifty-six (out of 90) students
attempted to answer this question. Four answered it correctly. This ques-
tion is “difficult.”
The mean percentage of correct responses was 55 and the median was 53.
There were no easy questions in Category III.
Of the “difficult” questions the highest percentage of correct responses
T/F. Public high schools receiving government funds must allow stu-
dent groups to meet, regardless of their religious or political content, if those
schools allow non-curricular clubs in general.The answer is “true” (Westside
Community Schools v. Mergens 1990). Fifty-three (out of 90) students
attempted to answer this question. Forty-three answered it correctly.
Of the “medium” questions, the lowest percentage of correct responses
(i) To what does the term “State Action” apply?

(a) A state’s right to nullify federal legislation on constitutional grounds.
(b) A state’s duty to respond to a federal subpoena.
(c) A state’s right to hear a criminal case if the crime occurred solely
within that state.
(d) The requirement that government must be involved for the
Constitution or Bill of Rights to apply.
(ii) T/F. Marbury v. Madison establishes that “the federal judiciary is
supreme in the exposition of the law of the Constitution.”
The answer to (i) is d. Sixty-one (out of 90) students attempted to answer

question (i). Seventeen answered it correctly. The answer to (ii) is “false”
(Cooper v. Aaron 1958; Baker v. Carr 1962). Fifty-two students attempted
to answer question (ii). Twelve answered it correctly.
gory III—external themes (p. 68)

93 7 n/a n/a 93 23 81 7 55 53
Category IV—External History—includes 36 questions. The average

percentage of questions answered was 50 (18/36). The highest percent-
age of correct responses for any one question was 83:
T/F. In 1790, there were 4 million people in the United States, 17 % of
whom were slaves.The answer is “true” (Monk 2003, 31). Fifty-nine (out
of 90) students attempted to answer this question. Forty-nine answered it
correctly. This question is of medium difficulty.
How many times has the House of Representatives chosen the President?
(a) 0
(b) 1
(c) 2
(d) 3
The correct answer is d: Thomas Jefferson in 1800; John Quincy Adams in

1824; and Gerald Ford in 1974. Fifty-four (out of 90) students attempted
to answer this questions. Six answered it correctly. This question is difficult.
The mean percentage of correct responses was 47 and the median was 42.
There was only one “easy” question in Category IV and 44 % of the
respondents answered it correctly:
The Federalist papers were written by
(a) John Jay, James Madison, and Alexander Hamilton

(b) James Madison, George Mason, and Ben Franklin
(c) Alexander Hamilton, James Ellis, and George Washington
(d) John Jay, John Adams, and GouverneurMorris
The correct answer is a. Fifty-two (out of 90) attempted to answer this

question. Twenty-three answered it correctly.
Of the “medium” questions, the lowest percentage of correct responses
Which of the following decisions made it illegal for laws to discriminate
against women?
(a) Bradwell v. Illinois, 1873

(b) Goesaert v. Cleary, 1948.
(c) Hoyt v. FL, 1961
(d) Reed v. Reed, 1971
70 C. DREISBACH
gory IV—external history (p. 70)

83 11 44 44 83 29 72 11 47 42
The correct answer is d: Reed v. Reed (1971). Forty-one (out of 90) stu-
dents attempted to answer this question. Twelve answered it correctly.
Of the “difficult” questions, the highest percentage of correct responses
T/F. The Court supported nationalism in McCulloch v. Maryland,
1819.The answer is “true.” Forty-three (out of 90) students) attempted
to answer this question. Thirty-one answered it correctly.
Overall, the average percentage of questions answered was 65. The high-
est percentage of correct responses for any one question was 94; the lowest
was 5. The mean percentage of correct responses was 45 and the median
was 41. Since all students took about the same amount of time to complete
the exam, it is not clear why on average, students answered only 65 % of
the questions, when many were able to answer all of the questions or close
to it. That 94 % answered at least question correctly is promising, but this
is mitigated by the question that only 5 % answered correctly. Since on
average 45 % of the respondents answered any one question correctly, we
may take this along with the other information in this chapter as evidence
of considerable room for improvement in constitutional literacy among law
enforcement professionals and others working in public safety.
SUMMARY
This chapter has identified four kinds of evidence for pervasive lack of
constitutional literacy among people, sworn and non-sworn, who should
be more constitutionally literate.
The first kind of evidence is anecdotal, much of which Chap. 1 offers.
There are many examples of sworn officials and public opinion leaders
confusing the Constitution with the Declaration of Independence or
misstating constitutional provisions.
The second kind of evidence comes from academia and the popular
press, including think tanks, conferences, journal articles, and newspaper
articles. The Annenberg Public Policy Center, for example, found that
only 15 % of respondents to a survey knew that the Chief Justice of the US
Supreme Court is John Roberts and only 38 % knew the three branches
of government.
The third kind of evidence comes from a survey of police basic train-
ing programs. On average only 6 % of these programs focuses on the
Constitution, with much of that focus limited to some Amendments and
Supreme Court decisions.
The fourth kind of evidence comes from a test that 90 public safety
professionals—mostly sworn police officers—took, with an average com-
pletion rate of 65 %; scores that on a standard grading scale would have
four of the respondents earning Ds and the remaining respondents failing;
and an average correct response of 45 % to any one question.
Any one of the four kinds of evidence might be insufficient to argue for
pervasive lack of constitutional literacy. For example, that a handful of US
Government officials and public opinion leaders confuse the Constitution
with the Declaration is no proof that this is the norm. But the four kinds
of evidence taken together make clear that constitutional literacy is not as
pervasive as it could—or should—be.
Having discussed the nature and lack of constitutional literacy, we turn
next to arguments for the practical and moral value of constitutional lit-
eracy, having anticipated the question, “So what?”
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rights. HuffingtonPost.com, April 17. http://www.huffingtonpost.com/burton-
newman/the-nras-fraud-fabricatio_b_3103358.html.
POLICE BASIC TRAINING WEBSITES (POSTAL CODE

IN PARENTHESES):
• Alabama (AL) http://www.apostc.state.al.us/; http://www.apostc.state.al.

us/LinkClick.aspx?fileticket=u41o7IiGHbI%3d&tabid=58
• Alaska (AK) http://www.uaf.edu/courses/courses-detail/index.xml?name=Law%20
Enforcement%20-%20LE&abrev=LE
• Arizona (AZ) http://www2.gccaz.edu/academics/departments/public-safety-
science/lLEO/law-enforcement-training-academy
• Arkansas (AR) http://www.clest.org/aleta/Pages/trainingSchedule.aspx
• California (CA) https://www.post.ca.gov/regular-basic-course-training-speci-
fications.aspx
• Colorado (CO) https://www.arapahoe.edu/catalog/law-enforcement-academy-
courses.htm
• Connecticut (CT) http://www.ct.gov/post/lib/post/basic_training/871_cur-
riculum_hours.pdf
• Delaware (DE) http://dsp.delaware.gov/dsp_recruiting_requirements.shtml
• Florida (FL) https://www.fdle.state.fl.us/Content/CJST/Documents/Curriculum/
CMS2015/2015-LE-IG.aspx
• Georgia (GA) http://www.gpstc.org/training-divisions/basic-training-divi-

sion/basic-police-officer-training/
• Hawaii (HI) http://www.joinhonolulupd.org/officer/index.php?page=training
• Idaho (ID) https://www.post.idaho.gov/about_post/AdminsMessage.html
• Illinois (IL) http://www.isp.state.il.us/academy/cadettopics.cfm
• Indiana (IN) http://www.in.gov/ilea/files/Basic_Course_Schedule_207.pdf
• Iowa (IA) https://ileatraining.org/files/DDF/Form-Application_for%20_
Approval_of_Curriculum.pdf
• Kansas (KS) http://www.kletc.org/pdf/ftbasictraining.pdf
• Kentucky (KY) https://docjt.ky.gov/forms/ScheduleBook/2015/Schedule_2015.
pdf
• Louisiana (LA) http://www.cole.state.la.us/programs/post_Basic_Training.
asp
• Maine (ME) http://www.maine.gov/dps/mcja/training/index.htm; http://
www.mdle.net/publicsafetytraining.htm
• Maryland (MD) https://www.baltimorecountymd.gov/Agencies/police/careers/
academy.html
• Massachusetts (MA) http://www.mass.gov/eopss/funding-and-training/law-
enforce/msp-acad/academy-overview.html
• Michigan (MI) http://www.delta.edu/policeacademy/basic-police-training-
academy.aspx
• Minnesota (MN) https://www.google.com/webhp?sourceid=chrome-
instant&ion=1&espv=2&ie=UTF-8#q=Hamline+University+Peace+Offic
er+education+program
• Mississippi (MS) http://www.sos.ms.gov/ACProposed/00013666b.pdf
• Missouri (MO) http://www.stlouisco.com/Portals/8/docs/Document%20
Library/police%20academy/curriculum.pdf; http://leti.missouri.edu/acad-
emy.aspx
• Montana (MT) http://leg.mt.gov/content/Publications/fiscal/interim/2015_
financemty_Sept/law-enforcement-academy-study.pptx
• Nebraska (NE) https://www.excelsior.edu/c/document_library/get_file?
uuid=6ad84b02-74cc-4123-9b81-80f6169c6109&groupId=12408
• Nevada (NV) http://post.nv.gov/uploadedFiles/postnvgov/content/Training/
NAC289.140%20CAT%20I.pdf
• New Hampshire (NH) http://www.pstc.nh.gov/academy.htm; https://www.
nhti.edu/academics/course-descriptions/criminal-justice-course-
descriptions#crmj121c
• New Jersey (NJ) http://www.state.nj.us/lps/dcj/njptc/pdf/Basic-Course-
for-Police-Officers-BCPO.pdf
• New Mexico (NM) http://nmlea.dps.state.nm.us/wp-content/uploads/2014/03/
Accreditation-Worksheet.pdf
• New York (NY) http://www.criminaljustice.ny.gov/ops/docs/ training/
pubs/basicpolice/bcpooutline.pdf
74 C. DREISBACH
• North Carolina (NC) http://ncja.ncdoj.gov/getdoc/85c25fd2-0e0e-4e02-

927a-4adb73462d97/BLET.aspx ; http://ncja.ncdoj.gov/getdoc/c5459b4a-
7d9b-4627-a3c9-1807483b3150/BLET-Topic-List.aspx
• North Dakota (ND) http://www.lrsc.nodak.edu/academics/programs/peace-
office-training-law-enforcement
• Ohio (OH) http://www.ucclermont.edu/content/dam/clermont/Academics/
Police%20Academy%20Documents/Ohio_Peace_Officer_Training_Curriculum.
pdf
• Oklahoma (OK) https://www.ok.gov/cleet/Peace_Officers/
• Oregon (OR) http://www.oregon.gov/dpsst/AT/Pages/StudentInfo.aspx;
http://www.oregon.gov/dpsst/BD/Policy_Committee_Minutes/BPSST_
Minutes/Board102512.pdf
• Pennsylvania (PA) http://www.portal.state.pa.us/portal/server.pt/gateway/
PTARGS_0_190926_561310_0_0_18/MPOETC_Basic_Police_Curriculum.
pdf
• Rhode Island (RI) http://www.rimpa.ri.gov/basicrecruitment/requirements.
php; http://www.rimpa.ri.gov/basicrecruitment/samplebasiccourses.php
• South Carolina (SC) http://www.scdps.gov/sctrooper/training.asp
• South Dakota (SD) http://dci.sd.gov/LawEnforcementTraining/BasicOfficer
Certification.aspx
• Tennessee (TN) https://www.tn.gov/assets/entities/commerce/attachments/
POSTRules.pdf; http://www.nashville.gov/Police-Department/Administrative-
Services/Training-Academy.aspx
• Texas (TX) https://www.cedarvalleycollege.edu/ContinuingEducation/Law
EnforcementAcademy/Lists/WebPages/DispForm2.aspx?List=9a8656dd-
5138-4fe7-915b-951471617bb8&ID=24
• Utah (UT) http://www.slcc.edu/publicsafety/programs/law-enforcement-
academy.aspx; http://continue.weber.edu/policeacademy/modules.aspx
• Vermont (VT) http://vcjtc.vermont.gov/training/full_time/curriculum
• Virginia (VA) http://www.nvcja.org/BasicTraining.aspx; http://www.dcjs.
virginia.gov/standardsTraining/compulsoryMinimumTraining/cjsmanual-
LAW.pdf
• Washington (WA) https://fortress.wa.gov/cjtc/www/images/2015_New_
Uploads/curricula_syllabus/WSCJTC_BLEA_Curriculum-July_2010-
Current2010-10-21.pdf
• West Virginia (WV) http://www.statejournal.com/story/17794302/
wv-state-police-academy-gets-room-to-grow ; http://www.wvsp.gov/employ-
ment/trooperEmployment/Documents/brochure.pdf; http://www.brid-
gevalley.edu/sites/default/files/BridgeValley_Site_Files/Academics/
Academics/Documents/BVCTC%202015-2016-07.pdf
• Wisconsin (WI) https://www.nwtc.edu/Programs/Pathways/Law-Safety-and-
Security/Law-Enforcement-Services/Criminal-Justice-720-Law-Enforcement-
Academy; https://www.nwtc.edu/Programs/Pathways/Law-Safety-and-Security/
Program-Details/programs/Law-Enforcement-Academy-FAQs#cover; https://
www.nwtc.edu/Programs/Pathways/Law-Safety- and-Security/Law-
Enforcement-Services/Criminal-Justice-720-Law-Enforcement-Academy
• Wyoming (WY) http://www.wleacademy.com/Basic/Information%20Guide%20
POB.pdf
Raskin, Jamin. 2013. The Marshall-Brennan constitutional literacy project:
American legal education’s ambitious experiment in democratic constitutional-
ism. Denver University Law Review 90(4): 833–870, 831.
Reed v. Reed, 404 U.S. 71 (1971).
Royal, K., and Darra Hoffman. 2013. Impaneled and ineffective: The role of law
schools and constitutional literacy programs in effective jury reform. Denver
Scherer, Michael. 2015. Donald Trump. Time, December 21, 104–114.
Somin, Ilya. 1998. Voter ignorance and the democratic ideal. Critical Review
12(4): 413–458.
———. 2004. Political ignorance and the countermajoritarian difficulty: A new
perspective on the central obsession of constitutional theory. Iowa Law Review
89: 1289–1368.
States v. Miller, 307 U.S. 174 (1939).
Stevens, John Paul. 2014. Six amendments: How and why we should change the
Constitution. New York: Little, Brown, & Co.
Trop v. Dulles, 356 U.S. 86 (1958).
Waters, Jessica, and Lynn Addington. 2013. The Marshall-Brennan effect: The
benefits of teaching constitutional literacy for law students. Denver University
Law Review 90(4): 901–915.
Westside Community Schools v. Mergens, 496 U.S. 226 (1990).
CHAPTER 4
The Value of Constitutional Literacy
INTRODUCTION: KIM DAVIS AND THE SEPARATION

OF CHURCH AND STATE
On January 5, 2015, Kim Davis (b. 1965) took the oath of the office of
Rowan County Court Clerk in Kentucky. The oath was in two parts:
I Kimberly Jean Bailey Davis do solemnly swear that I will sup-

port the Constitution of the United States and the Constitution of this
Commonwealth, and be faithful and true to the Commonwealth of
Kentucky so long as I continue a citizen thereof, and that I will faithfully
execute, to the best of my ability, the office of clerk of the court according
to law; and I do further solemnly swear that since the adoption of the pres-
ent Constitution, I, being a citizen of this State, have not fought a duel with
deadly weapons within this State nor out of it, nor have I sent or accepted
a challenge to fight a duel with deadly weapons, nor have I acted as second
in carrying a challenge, nor aided or assisted any person thus offending, so
help me God. (Kentucky Constitution, sec 228)
I Kimberly Jean Bailey Davis do swear that I will well and truly dis-
charge the duties of the office of Rowan County Circuit Court clerk, accord-
ing to the best of my skill and judgment, making the due entries and records
of all orders, judgments, decrees, opinions and proceedings of the court,
and carefully filing and preserving in my office all books and papers which
come to my possession by virtue of my office; and that I will not knowingly
or willingly commit any malfeasance of office, and will faithfully execute the
duties of my office without favor, affection or partiality, so help me God.
(KY. Rev. Stat. Ann. sec. 30 A.020)

DOI 10.1057/978-1-137-56799-4_4
78 C. DREISBACH
Upon winning the election, Davis told a reporter,
My words can never express the appreciation but I promise to each and
every one that I will be the very best working clerk that I can be and will be
a good steward of their tax dollars and follow the statutes of this office to the
letter. (Menville 2014; my emphasis)
On June 26, 2015, the US Supreme Court ruled 5–4 that same-sex
couples have the constitutional right to marry (Obergefell v. Hodges 2015).
Thus, states must issue licenses to same-sex couples who request them and
are otherwise eligible to marry, and each state must recognize same-sex
marriages legally performed in any other state.
Writing for the majority, Justice Anthony Kennedy justified the deci-
sion on the basis of the 14th Amendment’s Equal Protection Clause and
Due Process Clause. Under the protection of these two clauses, Kennedy
argued, there is a constitutional right to marry and no state has the con-
stitutional right to deny that right to same-sex couples. More specifically,
Kennedy posited four principles that he felt compelled the court’s deci-
sion. First, the right to personal choice regarding marriage is inherent in
the concept of individual autonomy. Second, marriage “supports a two-
person union unlike any other in its importance to committed individu-
als.” Third, marriage “safeguards children and families and thus draws
meaning from the related rights of childbearing, procreation, and educa-
tion.” And fourth, “marriage is a keystone of the nation’s social order.”
None of Kennedy’s four points pertains to the Constitution explicitly,
although one might be able to make a case for constitutional connections.
Since the Constitution’s primary purpose was to establish a national gov-
ernment that is effective militarily and economically, the Constitution was
not too concerned with individual autonomy. Still, many of the rights that
the Bill of Rights enumerates make the most sense if predicated on the
principle of individual autonomy: freedom of speech, freedom of religion,
freedom from unreasonable search and seizure, the right not to incrimi-
nate oneself, among others, point to a respect for individual autonomy.
Whether the constitutional commitment to individual autonomy extends
to personal choice regarding marriage remains controversial. In any event,
many legal limits to whom or what one can marry remain, without serious
constitutional challenge. A sister may not marry her biological brother; no
one may marry an infant; there is no legal provision for marrying inani-
mate objects. In short, even if we grant a general desirability of individual
THE VALUE OF CONSTITUTIONAL LITERACY 79
autonomy, this is not by itself an argument for the constitutional right to

marry someone of the same gender.
Nor does Kennedy offer this premise as sufficient to make his argu-
ment. He adds three more, suggesting that the total of four premises
offers a compelling argument for his decision. Contrary to Kennedy’s sec-
ond principle, there is nothing in the Constitution that speaks to support
“of a two-person union unlike any other in its importance to committed
individuals.” One wonders whether this implies a pre-emptive rejection of
polygamy. Kennedy’s third principle raises more questions than it settles
concerning possibly constitutional “rights of childbearing, procreation,
and education.” Nothing in the Constitution proper recognizes these
rights, although Supreme Court decisions such as those in Griswold v.
Connecticut (1965)—concerning a couple’s right to manage its own birth
control—and Roe v. Wade (1973)—recognizing a woman’s right to have
an abortion—may support Kennedy’s third principle. Fourth, it is not
clear that “marriage is the keystone of the nation’s social order,” or that
this is constitutionally relevant even if it is true.
In short, while the Court’s conclusion in Obergefell is clear, Kennedy’s
defense of the decision is not constitutionally compelling. Nevertheless, a
long-held tradition in the USA is that if the Court has declared something
legal, then it is legal in fact. Thus, any objection on constitutional grounds
to the Court’s decision will be difficult to defend. Kim Davis took a stab
at it nonetheless.
On the day of the Supreme Court’s ruling, Kentucky Governor Steve
Beshear announced that Kentucky would comply with the Court’s order
(Chamberland 2015). Protesting the Court’s order and the governor’s
order on religious grounds, Davis asked Beshear for an executive order
allowing clerks who have moral objections to the law to refrain from com-
plying. Without the clerk’s name on the marriage license, it would be
invalid. Beshear refused Davis’ request, but she, turned away same-sex
couples anyway. Soon, to avoid charges of bias, she refused to issue any
marriage licenses, regardless of the couple’s genders.
On July 1, 2015, four couples sued Davis for refusing to give them
marriage licenses. The American Civil Liberties Union filed the suit on
behalf of the couples, two of whom were of the same gender, and two of
whom were of opposite genders (Miller v. Davis 2015). David L. Bunning,
judge of the US District Court for the Eastern District of Kentucky, pre-
sided. At one hearing, Davis claimed that her religious rights under the
1st Amendment gave her the right to refuse to issue the marriage licenses,
80 C. DREISBACH
since issuing the licenses would violate her Christian beliefs. Davis also
refused to resign, since her deputies would be free to issue the licenses,
and Davis felt that the court should not be issuing the licenses under any-
one’s authority (Wynn 2015). Davis’s attorneys, from the Liberty Counsel
law firm, noted that the plaintiffs could have obtained licenses from courts
in other Kentucky counties, which suggested that the plaintiffs wanted
primarily to force Davis to act against her beliefs.
Before Bunning issued his decision, Davis sued Governor Beshear for
ordering her to act against her religious beliefs (Cheves 2015).
On August 12, 2015, Judge Bunning ordered Davis not to apply her
‘no marriage licenses policy’ to requests before her. Anticipating an appeal
from Davis, the US Court of Appeals for the Sixth Circuit cut her off,
declaring
“It cannot be defensibly argued that the holder of the Rowan County
Clerk’s office...may decline to act in conformity with the United States
Constitution as interpreted by a dispositive holding of the United States
Supreme Court…There is thus little or no likelihood that the clerk in her
official capacity will prevail on appeal,” the panel further said. (Liptak 2015)
Davis (2015) filed an emergency appeal to the US Supreme Court,

which refused to hear it. Davis responded:
I never imagined a day like this would come, where I would be asked to vio-
late a central teaching of Scripture and of Jesus Himself regarding marriage.
To issue a marriage license which conflicts with God’s definition of mar-
riage, with my name affixed to the certificate, would violate my conscience.
Claiming to be acting under God’s authority, Davis continued to turn

away couples requesting marriage licenses (Blinder and Perez-Pena 2015).
In response, the four couples who had sued her asked Judge Bunning to
hold her in contempt of court. He did, ordering Davis to jail on September
3, 2015, until she agreed to comply with the order to issue the licenses.
Although the plaintiffs had requested that Davis only be fined, Bunning
refused, believing that others would pay the fine for her (Graham 2015).
He released her on September 8 after she asked to have her name removed
from the marriage licenses and the deputy clerks issue the licenses in her
place. The deputies agreed to issue the licenses, whether or not Davis
asked them not to. Davis returned to her office on September 14, allowing
the deputies to issue the licenses without her name on them.
It is tempting to dismiss Davis’s stance on the ground that she took

an oath to obey the Constitution, US laws, and Kentucky’s laws, and her
refusal to obey the laws in this case was an immoral violation of that oath.
While this objection to Davis may withstand critical scrutiny in the end, it
is not unanimous. Davis received a lot of direct support from important
opinion leaders and some legal scholars. She also received support indi-
rectly from the dissenting justices in Obergefell.
In 1993, the US Congress passed and President Bill Clinton signed
the Religious Freedom Restoration Act (RFRA; H.R. 1308 [103rd]).
This law protects people’s religious liberty except in the case where a
proposed legal restriction is “the least restrictive means of furthering a
compelling government interest.” Although Congress meant for RFRA to
apply both federally and at the state level, the US Supreme Court declared
in 1997 that the RFRA applied only to the federal government (City of
Boerne v. Flores 1997). In response 21 states enacted their own versions of
RFRA. Kentucky did so in 2013.
Government shall not substantially burden a person’s freedom of religion.

The right to act or refuse to act in a manner motivated by a sincerely held
religious belief may not be substantially burdened unless the government
proves by clear and convincing evidence that it has a compelling govern-
mental interest in infringing the specific act or refusal to act and has used
the least restrictive means to further that interest. A “burden” shall include
indirect burdens such as withholding benefits, assessing penalties, or an
exclusion from programs or access to facilities (KY HB279-draft 4-4-2013).
Legal scholar Eugene Volokh (2015) argues that this requires Kentucky
to take Davis’ side, although the state could also remove the requirement
that Rowan County marriage licenses have her name on them. Note, how-
ever, Kentucky’s RFRA’s definition of a burden. This challenges Volokh’s
argument, since the new marriage law did not withhold benefits from
Davis, assess penalties against her, or exclude her from programs or access
to facilities.
Some political notables, such as Mike Huckabee, former governor
of Arkansas; Senator Ted Cruz of Texas; and Bobby Jindal, governor
of Louisiana, claimed that the Court was tyrannically violating Davis’s
Christianity (Hanna et al. 2015). It is tempting to dismiss this as politi-
cal hyperbole. A true tyrant has no government check or balance; the US
Congress has the constitutional authority to remove justices for bad behav-
ior. Also, Article 5 of the Constitution makes possible an Amendment that
82 C. DREISBACH
would define marriage in a way neither the executive branch nor the judi-
cial branch could override. The Court acted autonomously in Obergefell,
but not tyrannically.
Others, such as Kentucky Senate President Robert Stivers, claimed that
the Court had no right to redefine marriage (deVogue 2015). But the
Constitution is silent on marriage including any proper definition of it.
Nor does the Constitution speak to the Court’s right to define marriage or
change the definition. What’s more, by extending the legal right to marry
to same-sex couples, the court did not redefine marriage, the Court only
extended a certain right, leaving the tradition of male-female marriages
available to those who wish to engage in that tradition.
A common refrain in letters to the editor was that if President Obama
could choose which laws to enforce, why couldn’t an ordinary citizen—
Kim Davis, in this case—do the same? (e.g., Hampton 2015). This is a
bad argument on so many levels that one hardly knows where to begin the
criticism. The Constitution does not prevent the President from exercising
a great deal of discretion in choosing how to apply his executive powers.
Also, if the President has acted incorrectly, then critics asserting this and
then insisting that Davis should be allowed to do the same is logically
inconsistent. What’s more, the Constitution does not grant ordinary citi-
zens the same powers it grants the President.
One unusual tack among some of Davis’s supporters was to argue that
one should not need a license from the government in order to marry.
This was the position of Matt Bevin, who became Kentucky’s governor in
2015 (Israel 2015). But there is nothing in the Constitution that prohibits
the government from licensing marriages, and civil marriages have a long
tradition of being accepted in the USA. Given the appeal to tradition by
Davis’s supporters, consistency would require them to concede the gov-
ernment’s authority to license marriages.
While the US Supreme Court did not address Davis directly, her sup-
porters could cite the dissenting justices’ views in Obergefell as further
ammunition for Davis’s side. Roberts gave seven reasons for his dissent in
Obergefell:
• Congress should decide whether to legalize same-sex marriage, since

the Court’s task is “to say what the law is, not what it should be.”
• “The fundamental right to marry does not include a right to make a
state change its definition of marriage”;
• Other court decisions removing barriers—such as race—to marriage,

did not change the fundamental definition of marriage as being
between a man and a woman
• There is no constitutional right to marry someone of the same gender
• The petitioners’ right to privacy had not been violated, since they
were free to cohabitate and raise families
• The majority’s argument would support polygamy as well as same-
sex marriage
• The majority should not have “sullied those on the other side of the
debate.”
Justice Antonin Scalia added that the debate over same-sex marriage,
“democracy at its best,” should have been allowed to continue into the
voting booth. The Court’s having muted the debate was, according to
Scalia, a direct threat to democracy. Justice Clarence Thomas added that
the petitioners had not been deprived of life, liberty, or property, and
so were not suffering from a violation of their 14th Amendment rights.
Justice Samuel Alito added that the Constitution leaves the definition of
marriage up to each state.
We have already seen the Court majority’s decision in Obergefell, as
Kennedy explained it, which serves as a critical response to the dissenting
opinions and thus as a challenge to those who would use such dissent to
defend Davis.
Most direct criticisms of Davis faulted her disobeying the law or at least
failing to enforce it, especially since she was an officer of the court (e.g.,
Bowman 2015; Liptak 2015). One might add that she willingly swore to
uphold the laws of the land.
Legal scholar Katherine Franke (2015) notes that by signing the license
all Kim Davis is doing is certifying that the couple meets the state require-
ments; not whether she agrees morally with the proposed marriage. Law
Professor Jonathan Adler (2015) notes that the state, not the church (or
any other religious body) gets to determine what marriage is legally.
Note that while Davis’s defenders tended to lean toward the right polit-
ically, critics of Davis comprised people from across the political spectrum.
Since the story was breaking during the initial stage of the presidential
campaign in 2015, one has only to look at the views of the candidates to
see the broad political spectrum of Davis’s critics. Candidates on the left,
such as Hillary Clinton, either criticized Davis for violating her oath of
84 C. DREISBACH
office or offered no public opinion. On the right, Republican candidates,

including Donald Trump, Jeb Bush, Lindsay Graham, and Carly Fiorina
agreed that either she should honor her oath or resign (Israel 2015).
One wonders whether a higher degree of constitutional literacy would
have kept Davis from her crusade and tempered the ardor of her sup-
porters. In a nutshell, she argued that she had the constitutional right
to practice her religion and that the US Supreme Court was wrong in its
decision in Obergefell and in its refusal to hear—and grant—her appeal.
Publically, Davis offered little evidence of constitutional literacy; many of
her supporters offer little more. To be fair, one might wonder whether our
degree of constitutional literacy is sufficient to justify our weighing into
the debate and defending one side or the other.
As we have seen from the different justices’ views in Obergefell, consti-
tutional literacy by itself does not guarantee a solution that would satisfy
everyone. Surely all nine Supreme Court justices are constitutionally liter-
ate, yet even they could not agree. At the same time, the majority decision
is the official decision of the court, of which Davis was an employee.
At the least this case and its many facets suggest the value of consti-
tutional literacy, even if that is no guarantee of a satisfying resolution.
How much less meaningless rhetoric and hurt feelings would there be
if all the stakeholders were constitutionally literate? The answer is dif-
ficult to quantify, but navigating through the saga would be richer, if not
easier, with a strong understanding of the Constitution as a foundation
for the journey.
To speak of such value is to invite at least two sorts of inquiry: what is
the practical value of constitutional literacy and what is its moral value.
This distinction invites the further distinction between sworn officials and
non-sworn stakeholders.
The moral value of constitutional literacy refers to the rights and
responsibilities of those whom we should expect to display such literacy.
The practical value of constitutional literacy is an answer to the question
how such literacy is useful. These are not mutually exclusive questions,
since one might argue that a practical value of constitutional literacy is
its helping people to exercise their rights and fulfill their responsibilities.
Applying the distinction between the practical value and the moral value
of constitutional literacy should help us capture some of the finer points
of our inquiry. Let’s look at the practical value first, moving from sworn
to non-sworn.
THE PRACTICAL VALUE OF CONSTITUTIONAL LITERACY
The Practical Value for Sworn Personnel

In general, people who have promised to support and defend the
Constitution should know the Constitution well enough to evaluate their
success or failure at keeping that promise. Thus, to the extent that we have
the right to expect our public officials to keep that promise, we have the
right to expect them to be constitutionally literate. And we must be con-
stitutionally literate enough to hold them to their word.
Any sworn official represents one of the three branches of government:
legislative, executive, or judicial. In rare cases, an official may represent
more than one branch at the same time. The Vice President of the USA,
for example, serves both the executive branch and the legislative branch,
as president of the Senate. In each branch, constitutional literacy will have
practical value to the extent it helps the officials do their jobs.
The Legislature
Legislators have a double task: representation and legislation (the follow-
ing is worked out in greater detail in Dreisbach 2009, Chap. 12). In both
tasks, the legislators must keep the constituents in the loop so that the leg-
islators can knowledgeably represent the community’s interests. Keeping
constituents in the loop means informing them and educating them about
the constitutional scope and limits of legislative rights and responsibilities.
It means informing them and educating them about pending legislation—
how the law will be worded and what impact it may have on the com-
munity. Also, keeping the constituents in the loop means providing them
adequate access to the legislator so that they can express their interests and
acquire the information they need to be well informed.
In both tasks, representing and legislating, legislators face the question,
which is the more important legislative task, to “secure the blessings of
liberty,” as the Constitution’s preamble promises, or to ensure security at
the cost of certain liberties? (Trotter 2007, 20).
The task of representation includes making laws and overseeing the
execution of those laws. The preamble to the Constitution lays out the
legislator’s task:
We the people of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
86 C. DREISBACH
defense, promote the general Welfare and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
Ideally, any law the legislator makes should honor these goals. Thus, any
law that threatens tranquillity, the general welfare, or liberty, for example,
is contrary to the constitutional purposes of law-making and should be
voted down or overturned. In addition to making the law, the legislature
should monitor the promulgation and effect of laws and should oversee
and manage those responsible for executing and adjudicating the laws.
In short, constitutional literacy is essential to the legislators’ doing their
jobs. And since engaging their constituents appropriately is also essential
to being successful legislators, and since the constituents have the respon-
sibility to work with their legislators, the constituents require a useful
degree of constitutional literacy as well.
The Executive Branch

In broad terms, the task of the executive branch is to execute the laws,
which ideally express the will of the people. Since the Constitution estab-
lishes the scope and limits of the executive’s rights and responsibilities,
it stands to reason that constitutional literacy is useful to understanding,
executing, and assessing those tasks. Article 2 of the Constitution is home
base for the executive branch, although it focuses on the presidency and
vice presidency to the exclusion of other areas of the executive branch.
Much of the constitutional function of the executive branch comes from
subordinate offices, starting with the cabinet departments, agencies, and
bureaus, and moving down to the executive branches of local communi-
ties. A fruitful example of the executive branch, for our purposes, is law
enforcement.
Law enforcement is a major function of the executive branch of govern-
ment, whose discussion in the Constitution, Article 2, comes between the
legislature and the judicial branch of government. A thorough discussion
of executive ethics might start with the office of the President of the USA,
including his vice president, cabinet, and staff; then move to state gover-
nors; county councils; and city and town mayors. Presidents, governors,
councils, and mayors bring important management functions to the crimi-
nal justice system, which are necessary to executing the will of the people
as expressed through legislation. Moreover, these functions are governed
by the Constitution and hence presuppose some degree of constitutional
literacy. Because an adequate discussion of constitutional literacy at these

executive levels would be so extensive, our discussion will be sufficient for
the purposes of this book if we focus on law enforcement as a key repre-
sentative of the executive branch of government.
Law enforcement occurs in two places in the general operations of the
USA’s political system (President’s Commission 2005, 7–12). The first is
between the enactment of a law and a judicial decision about whether
someone has broken the law. The second occurrence is when a court
decides that someone has broken a law and the court puts that person
into the corrections system. We shall use the term “police” to refer to the
professionals involved directly in the first occurrence and we will focus on
police as representatives of the executive branch. This is in keeping with
making law enforcement one of the focal points of this book. Police in
this broad sense include federal law enforcement officials from, for exam-
ple, the US Departments of Justice, Treasury, Homeland Security, Health
and Human Services, Defense, Transportation, and other cabinet-level
departments that have a law enforcement function. Police also include law
enforcement officials at the state and local levels. Note that the US Capitol
police and their counterparts in the 50 states are part of their legislative
branches, rather than the executive branch, although much of their con-
stitutional responsibility is akin to their colleagues in the executive branch.
While the first responsibility of the police is, theoretically, to the
Constitution itself, in practice, police are beholden first to their communi-
ties, keeping the peace; preventing crime; investigating crime; apprehend-
ing, arresting, and processing suspects; writing and submitting reports;
testifying in court; and dealing with colleagues. It is likely that a good
number of the police have had successful careers without having sought
constitutional literacy. It would have been enough to know the laws
and relevant procedures, and to obey those laws and procedures, both
on and off duty. That these laws and procedures come from the legisla-
ture, the courts, or executive decision, all of which are governed by the
Constitution, need not concern the police who are otherwise doing their
jobs well. Thus, a question we will encounter several times in this book is,
what is the value of constitutional literacy to sworn officials who are doing
good, if not exemplary work, without having a measurable degree of con-
stitutional literacy? Two answers present themselves readily.
First, since protecting the Constitution is the one promise every police
official in the USA makes, it is better for the police to know what they are
protecting than to simply rely on luck. A police officer might never have
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to use her gun or confront a terrorist, but knowing how to use a gun or
knowing what to do when confronting a terrorist will make the officer bet-
ter prepared to exercise those responsibilities well. Similarly, a police offi-
cer may never face a constitutionally challenging moment, especially if she
follows departmental rules and local laws, but knowing the Constitution,
that is, being constitutionally literate enough to face constitutional chal-
lenges if they should arise will make the officer better prepared to face
those responsibilities well.
Second, to the extent that police know the laws and procedures of
their jurisdiction and agency—and quite possibly the general philosophy
behind them—the police do have some degree of constitutional literacy.
Police can be counted on to know the 4th Amendment well and to know
such relevant court decisions as Terry v. Ohio (1968), which permits an
officer to stop and frisk a suspect on the basis of reasonable suspicion, and
Miranda v. Arizona (1966), which requires police to inform a suspect of
the right not to incriminate oneself and the right to counsel, before the
police interrogate the suspect. Constitutional literacy is a matter of degree
and what we hope for from our police is a sufficient degree of constitu-
tional literacy to be dependable and accountable in their work. The opti-
mum degree is a topic for another time.
Perhaps the most crucial parts of the Constitution for police are the
4th, 5th, and 6th Amendments, which protect suspects against unreason-
able search and seizure and self-incrimination, and guarantee arrestees due
process, the right to confront their accusers, and the right to a speedy trial.
Problems will arise, therefore, when police professionals are unclear about
what these obligations and rights entail or when they feel confident about
these, but face a citizenry that disagrees with them.
In addition to obeying the Constitution and the law, the officers have
a fiduciary responsibility to the community. They act on behalf of the
community members in ways the members cannot act themselves. For
example, when an officer arrests a suspect, it is not for the police officer’s
sake but for the sake of the people on whose behalf the officer has the
power to act, thus contributing to their safety and security.
In recognizing the officers as fiduciaries, the community trusts them to
know what they are doing, a part of which is to protect the Constitution.
Thus, the community assumes some level of constitutional literacy in the
officer and the community needs some level of constitutional literacy to
determine whether the officers are acting as they should.
We have been speaking about the practical value of constitutional lit-

eracy to sworn officials, in the immediate case, police. We have done so,
focusing on their responsibilities, about which there will be more to say
when we consider the moral value of constitutional literacy for police.
But where there is a practical value relative to police fulfillment of their
responsibilities, there also are relevant rights. Police officers have the right
to enter and search homes; to chase, stop, frisk, arrest, and interrogate
people; and to use deadly force when necessary to protect themselves and
other innocent people, or to effect an arrest. Some of these rights comple-
ment duties on the community’s part. For example, as we have noted,
the community in its interaction with law enforcement must respect the
law, respect the police, not hinder and sometimes assist the police in their
work, respond honestly to an officer’s inquiries, and use the 911 system
responsibly.
The Judiciary
The Constitution’s framers did not anticipate the present judiciary’s impor-
tance in America’s criminal justice system. In Federalist Paper No. 78,
Alexander Hamilton (1788) writes that “The judiciary is incontestably
the weakest of the three branches of power,” since “it can never success-
fully attack the other two” branches. In this paper, Hamilton (1788) cites
French political philosopher Montesquieu’s claim that “Of the three pow-
ers above mentioned, the judiciary is next to nothing.”
It turns out, however, that much of the controversy that involves the
Constitution comes from the courts. We saw this in the synopsis of the Kim
Davis case at the beginning of this chapter. As the President’s Commission
on Law Enforcement and Administration of Justice (2005) puts it,
The criminal court is the central crucial institution in the criminal justice sys-
tem. It is the part of the system that is the most venerable, the most formally
organized, and the most elaborately circumscribed by law and tradition. It
is the institution around which the rest of the system has developed and to
which the rest of the system is in large measure responsible. It regulates the
flow of the criminal process under governance of the law. The activities of the
police are limited or shaped by the rules and procedures of the court. The
work of the correctional system is determined by the court’s sentence. (135)
The judiciary operates in the USA within an adversarial system. This

includes judges, lawyers, juries, and court reporters. There are other roles
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in the courtroom as well, such as the paralegal, the bailiff, and the court
clerk. With the legislators and the executive branch, the judiciary stands to
benefit from constitutional literacy.
The Adversarial System

There are two principal systems of adjudication world-wide. The adver-
sarial system, which the USA has, is in the common law tradition of
developing abstract legal principles from specific cases and judicial deci-
sions. Its roots are British. And it is governed primarily by Article 3 of the
Constitution and relevant Amendments. The inquisitorial system is in the
civil law tradition of identifying abstract rules and then applying them to
specific cases. Its roots are Roman.
In the adversarial system, each party to the case gathers evidence and
constructs arguments to try to prove its point to an impartial third party—
a judge or jury. Ideally, a thorough presentation by both sides of the issue
will allow the truth to rise to the top, giving the neutral finder of fact (the
judge or jury) the chance to offer an appropriate disposition of the case.
In practice, of course, the personality and ability of the various players
in the trial may have a profound effect on its outcome, raising practical
and moral issues of unfairness, ineptness, and bias, for example. In the
inquisitorial system, the judge or tribunal of judges develops the case in
an attempt to engage in an impartial search for the truth (Schrader 1988,
13). Thus, in the adversarial system each of the parties must be good at
this sort of investigating and arguing, which assumes a fairly high level of
constitutional literacy. In an inquisitorial system, the judge primarily needs
these skills. Also, in the adversarial system, the judge’s primary task is to
produce and maintain a forum for each party to make its best case, while in
an inquisitorial system, the judge creates the case itself (Kipnis 1986, 29).
The adversarial system in the USA has a constitutional foundation,
especially Article 3, and the 4th through 8th, and 14th Amendments. As
the baseline, the Constitution permits legal punishment only for specific
acts that a plaintiff (in civil cases) or prosecutor (in criminal cases) proves
in court to have violated existing laws. Thus, no one in the USA can
be punished without reason or punished without proof of committing a
crime. Nor can anyone in the USA be punished ex post facto, that is for an
act that was not a crime when he acted.
Any attempt to punish a defendant must apply due process. The
defendant is presumed innocent unless the plaintiff can prove guilt by a
preponderance of the evidence or the prosecutor can prove guilt beyond a

reasonable doubt. Note that the Constitution does not use the terms “pre-
sumption of innocence,” “A preponderance of the evidence,” or “beyond
a reasonable doubt” (Whitman 2005). The defendant must receive noti-
fication of the specific charges before the trial starts and be able to hire an
attorney to represent him. Then, the defendant must be able to confront
his accusers, present evidence on his behalf, and have an impartial jury
weigh that evidence.
The plaintiff or prosecutor also has rights (Kipnis 1986, 23). Within
legal limits, she may submit a charge or appeal to a judge or group of
judges, summon the defendant to court to respond to the charges, have
the judge or judges make a decision, and have the decision enforced if the
plaintiff or prosecutor wins.
The biggest practical problem due process presents is that it is not an
efficient process—it favors the rights of the accused over the expeditious
resolution of the case (President’s Commission 2005, 125). This has caused
a huge backlog of cases in lower courts, leading at times to “assembly line
justice” (President’s Commission 2005, 128). Often in lower courts pros-
ecutors and defense attorneys seek to cut deals that deprive the parties of
the full hearing in court to which they are entitled. In criminal cases, fig-
ures for the number of convictions due to plea bargains rather than trials
are debatable but tend to be over 90 %. For example, “nationally, for fiscal
year 2004, 95.5 percent of the 51,666 convictions were reached through
guilty pleas. That means that only 2,316 U.S. District Court cases across
the country went to trial” (Ward 2006; also see Langbein 1980). Thus,
much adjudication is administrative rather than judicial, which raises more
constitutional concerns about the defendant’s chance for a fair trial.
The adversarial system in general, its constitutional restraints, and the
resulting backlog pose practical challenges to each of the adjudicating pro-
fessions in different ways. While we may presume a high level of constitu-
tional literacy among judges and attorneys, shouldn’t it be the case that
the more constitutional literacy is distributed among all the stakeholders
in these challenges, the better?
The Judge
The judge presides over the court, whether there is a hearing, a trial, or an
appeal of a lower court’s decision. She also signs warrants and may issue
legal opinions on certain issues that do not require an appearance on the
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bench. In an adversarial system, the judge must be impartial, independent,

and accountable. She must also realize that her decision could set a legal
precedent that will serve as a premise in future legal cases. Thus, in the
USA, she must be constitutionally literate to a high degree.
As legal ethicist Kenneth Kipnis (1986) argues, there are four primary
advantages to having a responsible and informed judge oversee an adver-
sarial proceeding (24). First, the judge will know and apply legal standards
that minimize the chance of a trial being unfair. Second, the judge will lack
bias that would tip the scale in favor of one party or the other. Third, the
judge’s authority “equalizes the power” of the two parties. Fourth, the
outcome of the trial usually settles the matter, at least by the time there are
no more appeals, whereas the feud might continue unabated if the com-
munity had no impartial judge on whom to rely.
The Lawyer
The adversarial system is at its best when each side of a dispute is able
to present the best case possible. Such a presentation requires detailed
knowledge of the law, judicial proceedings, and legal argument. Such a
presentation, in other words, requires the skill of an attorney, which in the
USA requires a high degree of constitutional literacy.
The most significant services that a lawyer offers are as a counselor and
as a representative (Kipnis 1986, 34–35). The lawyer also may serve as a
negotiator or as a non-adversarial representative, such as in the writing of
a will or the registering of a patent. The primary client is the person seek-
ing counseling or representation. As a counselor, the lawyer offers advice
about legal rights, statutory law, and ordinances. She should offer this
advice as neutrally and objectively as possible, and with as strong an under-
standing of the Constitution as is necessary to the task, leaving it to the
client to take the advice or not. In turn, the client should have the degree
of constitutional literacy necessary to know whether to take the attorney’s
advice. As a representative the lawyer argues on behalf of the client in the
courtroom, acting as the client’s fiduciary and zealous advocate, and thus
showing a strong bias in the client’s favor—all practical matters requiring
a high level of constitutional literacy.
So much for the practical value of constitutional literacy to sworn offi-
cials, whether they are in the legislative, executive or judicial branch. By
now we should be ready to hold forth on the practical value of constitu-
tional literacy to Kim Davis and her supporters and critics. A higher degree
of constitutional literacy among all of them might not have settled the
issue of Davis’s refusal to do what she swore an oath to do, but it would
have ensured that people were better informed about the issues and thus
better able to participate in the debate intelligently.
We turn now to the practical value of constitutional literacy to non-
sworn stakeholders.
The Practical Value for Non-sworn Stakeholders

Non-sworn stakeholders include citizens and non-citizens. Non-citizens
include those who are in the USA legally or illegally.
It’s tempting not to discuss non-citizens any further, since one would
not expect them to be constitutionally literate. Yet, we ought to include
them here for two reasons. First, according to the US Supreme Court, even
non-citizens in the USA are protected by the 14th Amendment (Yick Wo
v. Hopkins 1886) and by the 5th and 6th Amendments (Wong Wing v. U.S.
1896). And states may not prohibit school-aged illegal aliens from enroll-
ing in public schools (Plyer v. Doe 1982). Second, non-citizens who are
preparing for citizenship probably know more about the US Constitution
than most natural-born US citizens (US Citizenship and Immigration
Services 2016). Thus, all non-citizens in the USA stand to benefit from
constitutional literacy, and citizens-to-be may well have achieved a degree
of constitutional literacy that most ordinary US citizens have not. So con-
stitutional literacy is relevant to non-citizens as well as to citizens.
Non-sworn citizens play many roles for which constitutional literacy
might have practical value. These roles include participating in the public
and legal life of the community, either by obeying the law or by breaking
it; participating in public political conversations face-to-face, in letters to
the editor, or on radio and TV call-in programs, for example; studying
civics in school; voting; and serving on a jury. Thus, constitutional literacy
has practical value for citizens who wish to function knowingly in the legal
and political contexts of the USA or who want to know more about their
country.
In general, recall three observations from Chap. 1. First, legal scholar
Toni Marie Massaro (1993) notes that, “Americans tend to define them-
selves and their assumed rights in reference to constitutional principles
more than any other tenets” (70). Second, Massaro (1993) argues that
“constitutional literacy is important not only to intelligent self-governance
but also to the mutual respect and toleration that is necessary for peaceful
co-existence within a heterogeneous culture” (129). Third, legal scholar
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Ilya Somin (2004) sums this up nicely: “A largely ignorant electorate will
often be unable to impose majoritarian control over elected officials”
(1297).
This is not a new idea. According to legal scholar Charles J. Crimmins
(2013), Thomas Jefferson and his legal mentor, George Wythe, “believed
constitutional literacy was the responsibility of every citizen and essential
to a self-governing society” (1003).
Concerning the plight of the constitutionally illiterate voter, it is safe to
say that an appreciable number of voters are voting for reasons other than
their grasp of the constitutional relevance of their choices.
As Law Professors K. Royal and Darra L. Hoffman (2013) note,
“Service on a jury is one of the most important moments of civic partici-
pation for any citizen and effective juries must include jurors with a strong
understanding of our system of government and the rule of law.” Thus,
Royal and Hoffman recommend “increasing civics education in schools
but also including a short, basic civics class as part of any jury service”
(959). In other words, one possible practical payoff of increased constitu-
tional literacy is in a jury’s being able to render a more appropriate verdict.
There is a long tradition of students learning civics in school, yet this
does not seem to have done much to promote constitutional literacy suf-
ficiently to serve the practical needs of the engaged citizen, the voter, or
the juror. There will be more to say about this in Chap. 6, but here, let
us acknowledge the effort of some scholars and organizations to promote
constitutional literacy in the classroom. One notable effort is the Marshall-
Brennan Constitutional Literacy Project, which we encountered in Chap.
3, pointing toward the lack of constitutional literacy that this project and
others are trying to remedy.
With headquarters in the Washington School of Law and chapters at
many law schools, this project was founded by law professor Jamin Raskin
(2013), with the aim of having upper-level law students teach constitu-
tional courses in public high schools. With a focus on constitutional rights,
the project’s curriculum includes the examination of key legal terms and
several court cases. For Raskin (2013), the combination of legal education
and civics engagement benefits both the law students and the high school
students, which indicates the practical value of constitutional literacy. Law
Professors Jessica L. Waters and Lyn A. Addington (2013) note that a
specific benefit on the law students’ side is that their work with Marshall-
Brennan tends to increase their interest in doing public work upon earning
the law degree. In another study of the effects of the Project, Maryam
Ahranjani et al., (2013) found that “high school students’ increase in
knowledge about constitutional rights and responsibilities increased their
civic participation.” Law professor Dawinder S. Sidhu (2013) identifies
three specific benefits of law students teaching constitutional literacy to
high school students: the law students model professional behavior; the
law students “serve in mentoring roles beyond the classroom experience”;
and high school students “have access to people and opportunities they
might otherwise not have and to discuss current and local events in their
discussion of constitutional issues” (977).
So far, we have made a case for the practical value of constitutional
literacy to sworn and non-sworn, in a variety of roles and functions where
constitutional literacy is relevant. Much of the practical value is in helping
people serve these functions better than they would in the absence of con-
stitutional literacy. Serving these functions better is of moral significance
as well, a point to which we turn next.
THE MORAL VALUE OF CONSTITUTIONAL LITERACY
The Moral Value for Sworn Personnel

Sworn officials, as professionals, have a moral responsibility to do their job
well. In general, this entails good moral character, which in turn requires
moral wisdom. This is true for both sworn and non-sworn. For the sworn
official there is also the particular requirement of adhering to the prin-
ciples of professional ethics in order to exhibit good moral character.
Good moral character is a virtue. Virtue, as Aristotle (Nicomachean eth-
ics 1105b20–1108b10) claims, is the ability habitually to know the good
and do the good. The good, he says, is a species of the perfect and since
“perfect” means neither too little nor too much, the good is the mean
between deficiency and excess. A virtuous professional, then, is one who
is able to make professional and personal choices that are neither deficient
nor excessive relative to the set of choices available to him. One who swears
to protect and defend the Constitution ought to do so in a way that is nei-
ther excessive nor deficient. This requires the sworn professionals’ know-
ing what they are protecting. Since we have already taken a close look at
a variety of sworn positions within the legislative, executive, and judicial
branches, it should suffice here to use one example of a sworn official as we
consider the moral value of constitutional literacy. We have a useful exam-
ple in our opening case: Kim Davis. What are the moral implications of
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her story and how might constitutional literacy contribute to an improved

moral picture?
In deciding what is morally good for any given case, and thus, to do
the moral good, one must be able to identify and assess the relevant con-
sequences, rules, and duties. Together, these comprise the three basic
theories of ethics: consequentialism, regularianism, and deontology. Many
ethicists embrace one to the exclusion of the others, but each of the theo-
ries has its shortcomings which may necessitate applying different theories
to different cases. Let’s take a look at the three and then consider virtue as
a fourth theory that may have more general, if not universal, application.
Consequentialism
Consequentialism holds that an act is morally good if its consequences
are good, that is, “the end justifies the means.” One consequence of
Kim Davis’s dissent is her satisfaction at preserving what she sees as her
religious integrity. If this was all that mattered morally, and we accepted
Davis’s assessment, we would have little to complain about. But there is
also the consequence of same-sex couples not being able to exercise their
right to marry in an American jurisdiction where they have that right.
An advantage of consequentialism is that we need only the objective
evidence, the consequences of an act, to pass moral judgment. Although
in Davis’s case, we must take her word that she was religiously satisfied,
we still see the unsatisfying consequences of her dissent for the couples
seeking marriage licenses.
For consequentialism, an act is morally good relative to a particular
culture or time. This is relativism. The contrary view is absolutism, the
view that at least some moral values are absolute—always morally good or
always morally bad. This distinction muddies the waters in Davis’s case,
since, on the one hand, she sees same-sex marriage as absolutely bad, but,
on the other hand, she is insisting that whatever the moral views of oth-
ers, her views should be respected, given her individual rights under the
Constitution.
It is worth noting, too, that moral relativism faces a major logical prob-
lem: essential to relativism is the claim that there are no absolutes. But
note that this claim is an absolute. Thus, to the extent that consequen-
tialism is relativistic, it may not be an ideal moral theory to apply in Kim
Davis’s case.
Another challenge to consequentialism, which regards an act as morally
good if the consequences are good, is the question, Good for whom? Two
types of consequentialist theories, egoism and utilitarianism, address this
question but offer conflicting answers. Egoism argues that an act is mor-
ally good if its consequences are good “for me,” while utilitarianism holds
that morality means achieving the greatest good for the greatest number
of stakeholders.
Among egoism’s theoretical shortcomings is its inability either to see
the possibility of self-sacrifice (Hobbes 1651) or to imagine a morally
good act of self-sacrifice (Rand 1943). Although Davis was claiming to be
acting out of duty to her God, there is an egoistic element in her putting
her personal interests ahead of her professional interest or the interests of
many of her constituents.
Utilitarianism’s goal of achieving the greatest good for the greatest
number is laudable on its face, but who gets to decide: the stakeholders
themselves or those who know better? Even if Davis were able to garner
support from a majority of people weighing in on her case, this would
not necessarily mean she is correct. Perhaps a wiser minority—e.g., a
small group of people with a higher degree of constitutional literacy—
would have a better sense of right and wrong in this case. Another prob-
lem that such a majority might present is the “tyranny of the majority”
(Tocqueville 2003). That a majority benefits from a particular act, may
not justify the suffering of the minority. Slavery and Jim Crow laws in
the USA are two examples of moral evil that may nevertheless have had
the support of a majority at one time. Many would make the same case
about same-sex marriage: just because a majority of stakeholders opposes
it does not thereby justify prohibiting it. The argument that something
is good, true, or superior simply because a majority says so commits the
fallacy of argumentum ad populum or appeal to masses. In the matter of
Kim Davis’s refusal to do her job, it would seem that one constitutionally
literate authority, such as the Supreme Court, has the moral upper hand,
even if it is in the minority otherwise.
In addition to being a relativist, consequentialism tends to hold that
moral value is subjective, that is, in the judge’s mind, not in the object
of being judged. This is similar to the adage “Beauty is in the eye of the
beholder.” For the subjectivist, to say, for example, “Same-sex marriage is
immoral” is equivalent to saying “I don’t approve of same-sex marriage.”
This is contrary to objectivism, the view that moral value belongs to the
object being judged. Same-sex marriage may not be morally objectionable
in itself, but one still might not approve of it for personal reasons. To the
objectivist, if the subjectivist were correct, morality would be a matter of
personal taste and, therefore, a moral debate would be as meaningless as
arguing about whether chocolate chip cookies taste good. Davis seems
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to think she is making an objective claim in her condemnation of same-

sex marriage, yet she also comes to this position having chosen to join
a particular denomination of Christianity, which does not agree with all
Christian denominations on this matter. To what extent, then is Davis’s
position subjective? Also, given the Constitution’s pointed refusal to get
into religious matters, would a higher degree of constitutional literacy
benefit Davis by helping to put her religious convictions and her constitu-
tional duties in their proper place?
Consequentialism will not suffice for all moral decisions: a consequen-
tialist premise may not always help a moral argument. Sometimes con-
sequences are significant to the moral worth of an act; sometimes they
are not. Also, consequentialism alone will not help us determine when to
invoke a different moral theory. For this reason, we consider two other
concepts of moral argument: regularianism and deontology.
Regularianism
Regularianism holds that an act is just, and therefore morally good, if it
obeys a rule, and unjust, and therefore morally bad if it violates a rule. As
a rule, in the USA, since the Supreme Court’s decision in Obergefell, US
courts must issue marriage licenses to same-sex couples who otherwise
qualify and each state must recognize any legal marriage that occurred in
any other state. Davis chose to violate this rule and received a great deal
of support for doing so.
Rules appear in many forms, such as divine commands (“Thou shalt not
commit adultery!”), criminal and civil laws (“Don’t rob banks!”), social
norms (“Say ‘please’ and ‘thank you!’”), and professional codes of ethics
(“Treat all clients with respect!”)
For at least four reasons, rule-based ethics is not always helpful in moral
decision-making.
• The rule may command a morally bad act, as did the unjust German
laws under Adolph Hitler, or the unjust laws in the USA that pro-
hibited mixed-race marriages, which the Supreme Court declared
unconstitutional in Loving v. Virginia (1967).
• A set of rules may contain contradictory commands: consider the law
that permits same-sex couples to marry and the divine rule, accord-
ing to Davis, that prohibits such marriages. These two commands
conflict with each other and in the absence of a third rule that pre-
scribes the proper adjudication of this dispute, there seems to be

no hope of resolution. Of course, in legal matters in the USA, The
Constitution appears to have the last word:
This Constitution, and the Laws of the USA which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under
the authority of the USA, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the Constitution
or laws of any state to the contrary notwithstanding (U.S. Const. Art.
6, cl. 2).
• A rule that is good in general may not apply in a particular circum-

stance, such as the rule that a US citizen has the right to practice her
religion as she sees fit.
• There may be no rule that applies to the situation that requires a
moral decision. When Davis announced her refusal to sign the mar-
riage licenses, it remained unclear whether the licenses in Rowan
County, KY, could be issued under someone else’s name, such as the
name of a deputy clerk. At the time, there was no clear rule to decide
either way.
Although there are many cases in which we should obey the rules, espe-
cially if they are just and we have agreed to obey them, as the four reasons
above show us, regularianism does not offer everything one needs to make
a good moral decision. Thus, the moral value of constitutional literacy
cannot be limited to its role in helping people obey the rules.
Deontology
Deontology (from the Greek deont—from obligation) holds that an act is
morally good, if it is done from duty, and morally bad otherwise. In a sense,
this is the most promising of the three basic theories of morality, since by
definition duty is what morally someone ought to do. Consequences and
rules may be morally bad, but duty is never bad.
Deontologist Immanuel Kant (1964) believed that our reasons for an
action make a moral difference to the action. For example: if a person
saved your life so he could kill you, that is morally different (and more
unjust) than his saving your life because he wants you to live long and
prosper. The consequence (saving your life) in both scenarios is the same,
but the motive is different. In the morally better case, the person seeks to
100 C. DREISBACH
do something good. Davis claims that she is doing her duty as a Christian.
Whether she is, it is fair to concede that she believes she is doing the right
thing. To this extent, then, her motive is good, even if from a constitu-
tional point of view it is misguided.
Critics offer at least three challenges to deontology. First, Kant claims
that a duty is absolute, that is, if it is good for one person to obey it, then
it is good for everyone to obey it. Thus, Kant’s view is open to criticism
from relativists, who hold that nothing is morally absolute.
Second, deontology makes it difficult to be moral all the time. For
Kant, it is not enough to do your duty; doing your duty must also be your
motive. A third criticism of deontology is that it does not help us resolve
conflicts of duty. In taking her oath of office, Davis acknowledged a duty
to obey the laws of her county, state, and nation. She also claims a duty to
refrain from certain acts that the law prescribes. At first blush, this appears
to be an obvious conflict of duty, although some might argue that only
one or the other is a genuine duty, or that one duty trumps the other. In
any case, deontology itself does not give clear guidance on how to resolve
conflicts of duty—indeed, Kant declared that such conflict was logically
impossible, since a duty is always good and its contrary must therefore
always be bad. But as we see in the Davis case and in many examples from
everyday life, conflicts of duty are real.
Thus, deontology is not sufficient for making all moral decisions.
Each of the three basic moral theories is of limited use in moral decision-
making, so a theory that synthesizes and takes the best from the three
while avoiding their shortcomings would be useful.
Virtue
For Aristotle, as noted above, ethics is a matter of human character, not
the consequences of an act, or a rule or duty that governs the act. Virtue is
good moral character and vice is bad moral character. Virtue is the ability
habitually to know the good and to do the good. Thus, virtue theory may
be especially useful when making moral decisions.
The good in virtue, for Aristotle, is an element of perfection: the better
something is the closer to perfect it is. Something is perfect when there
is neither too little of it, nor too much of it. Thus, the good is the mean
between the extremes of deficiency and excess. Virtue, then, is a matter of
habitually finding and hitting the mean between extremes. To make this
theory more useful, Aristotle invokes the four cardinal or basic virtues on
which all other virtues hinge: justice, courage, temperance, and prudence.
Justice
Justice is the mean between giving someone less than he deserves, such
as slapping a serial killer on the wrist and sending him home; and giving
someone more than he deserves, such as executing someone for shoplift-
ing. Given the decision in Obergefell, has Davis treated justly the same-sex
couples who have come to her for marriage licenses? To the extent that the
US Supreme Court is the authority on constitutional justice, the answer
is yes. Although, Davis’s supporters held that it was unjust to deny her
religious freedom to disobey the court order.
Courage
Courage is the mean between cowardice and foolhardiness. Did Davis
show courage in sticking to her religious principles in violation of her oath
and her job description? Only on the most cynical view did she act cow-
ardly—for example, she took her stance out of fear of going to hell. More
likely, if her critics are correct, she acted in a foolhardy fashion, choosing
to fight where such a fight was inappropriate.
Temperance
Temperance is the mean between a deficient use of an available resource
and excessive use of an available resource. Since we often associate tem-
perance with food and drink, we might think of anorexia as intemperately
deficient and gluttony as intemperately excessive. But temperance pertains
to use of any resource. For example, citizens who call 911 for an ambu-
lance when there is no medical emergency, use this service intemperately.
Citizens who have the classic signs of a heart attack but refuse to call 911
for fear of wasting the EMT’s time are also using the service intemperately.
Davis had the good will of the people who voted her into office. From
that position, she took her stand against same-sex marriage when her job
description called for her to issue marriage licenses to same-sex couples.
Did she use the resources of her office intemperately?
Prudence
Prudence or practical wisdom is the mean between acting on insufficient
knowledge, such as leaping before you look, and failing to act in spite
of sufficient knowledge to justify an act. For example, some might claim
that Davis acted on insufficient knowledge, especially of the Constitution,
when she quickly and uncritically announced that she would ignore the
decision in Obergefell. Either that or she knows the Constitution well and
102 C. DREISBACH
the details of the majority decision in Obergefell, but she chose to ignore
them anyway. The most prudent thing for Davis to do, given the strength
of her religious convictions, was to step down from a job in which she
promised to put the Constitution and the laws of the land first.
As we consider the moral value of constitutional literacy for sworn offi-
cials, we can identify three distinct advantages to virtue theory. First, vir-
tue theory helps us to choose which of the three basic moral theories to
apply to a moral decision. Sometimes consequences matter, sometimes
not. The same holds with rules and duties. Aristotle suggests that people
avoid excessive or deficient concern for consequences, rules, or duties by
deciding when such concern is deficient or excessive relative to other alter-
natives and by testing the alternative, people choose according to how
courageous, just, temperate, and prudent that choice is, over the others.
In Davis’s case, the most virtuous decision would have been for her to ful-
fill her official duties or to resign. This does not discount the importance
of the consequences of her act and the rules that pertain to her act, but it
helps put the moral theories in their proper perspective in this case.
Second, virtue theory offers a reasonable response to the debate
between absolutism and relativism. The principle that we should choose
the mean between extremes is absolute, and the cardinal virtues are always
morally good. But the mean is relative to the particular circumstance.
A Christian minister is well within her legal and constitutional rights to
refuse to marry a same-sex couple. Indeed, she is free to turn down any
couple who asks her to officiate. But a court clerk does not have the same
freedom. In the latter case that denial is an extreme; in the former case less
extreme and thus closer to the mean. Thus, in a sense, both relativism and
absolutism are correct.
Third, virtue theory gives us a way to define integrity. People of integ-
rity will generally be honest, will do only that which they would feel good
about having reported in the newspaper, will be able to look at themselves
in the mirror, and so forth. But this could just as easily describe a socio-
path—that is, someone with no moral conscience. A traditional definition
of integrity is worth noting: someone has the integrity to the extent she has
integrated the four cardinal virtues in her life. Thus, to have integrity is to
habitually act courageously, justly, temperately, and prudently: qualities we
hope for in our sworn officials and which appear to be lacking in Davis’s
case along with, and perhaps due in part to, a lack of constitutional literacy.
Referring to professional ethics more specifically than to ethics in gen-
eral, we may describe professional ethics partly in terms of a set of minimum
expectations for a morally good professional. (Bayles 1988). Thus, for

example, a professional should be competent, diligent, honest, candid, loyal,
informed, and committed to keeping one’s promises.
We might disagree on the scope and limits of each of these quali-
ties. For example, what does it mean to be a competent defender of the
Constitution? How might a sworn official’s loyalty to the Constitution
clash with loyalty to constituents, colleagues, or family members? When, if
ever, is it ok to lie in defense of the Constitution? Whatever the ambigui-
ties on this list and whatever we might want to add to or remove from this
list, it stands to reason that if one’s baseline professional responsibility is to
keep the promise to support and defend the Constitution, then one needs
to know the Constitution well enough to evaluate one’s success or failure
at fulfilling the moral responsibility. Thus, to the extent that we have the
right to expect our public officials to act with integrity, we have the right
to expect them to be constitutionally literate. And we have the obligation
to be constitutionally literate enough to hold them to their word.
Moral Value for Non-sworn Stakeholders

Non-sworn people in the USA, who have a stake in constitutional literacy,
do not have the same degree or kind of moral responsibility that sworn
officials have. For one thing, the unsworn have not formally promised to
protect, preserve, and defend the Constitution. Nor are many of these
people in professional positions where success on the job requires consti-
tutional literacy. Nevertheless, as with the practical value of constitutional
literacy to non-sworn stakeholders, there is moral value to constitutional
literacy.
For example, voting is a privilege the desirable exercise of which includes
an informed decision. This information should include not only the char-
acter, abilities, and plans of the candidates, but how these attributes of and
facts about the candidates stack up against their constitutional duties. To
have and manage this information well in preparation for an intelligent
vote requires some degree of constitutional literacy. There is no formal
rule to this effect—all else being equal, people need only to be at least 18
years old, residents of the place in which they are voting, and duly regis-
tered to vote; they do not have to know why they are voting the way that
they are or to have prepared for the vote in advance. But one could argue
that voters have a civic duty to prepare and that careless voting can have
morally bad consequences.
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Perhaps the duty to be constitutionally literate is even greater for those

serving on a jury. We have noted the practical value of constitutional lit-
eracy to jurors. As with the judge, the jury’s primary clients are the parties
before the court, but the jury’s actions will also impact the community.
Unlike with judges and attorneys, the jury’s constitutional role is limited
to the trial and thus limited by the lack of any professional requirement
to know the Constitution or the laws, rights, and concepts of justice that
come from it. Therefore, jurors face many of the same moral problems
that other adjudicators face because of the rights and responsibilities of the
profession, but they are much less prepared to deal with those problems.
The 6th Amendment to the US Constitution sets the stage for jury
ethics in criminal cases:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed….
The 7th Amendment addresses civil trials:
In suits at common law, where the value in controversy exceeds twenty

dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any court of the United States than
according to the rules of common law.
Note that there is no constitutional guarantee of a right to trial by a

jury of one’s peers, although one can find this right in the Magna Carta
(1215), which is an important ancestor of the US Constitution:
No freemen shall be taken or imprisoned or disseised {deprived} or exiled or

in any way destroyed, nor will we go upon him nor send upon him, except
by the lawful judgment of his peers or by the law of the land (#39).
There is a debate about the value a jury adds to the criminal justice
system. Political scientist Jeffery Abramson (1994, 3, 4, 7) notes seven
reasons for being skeptical about such value.
• A fully impartial juror would need a pure conscience, which is an

ideal that no one person can achieve.
• “Jurors tend not to measure up to the challenges of modern litigation.”
• “Attempts to balance juries demographically can slow down” jury

selection.
• Justice means treating like cases alike, but history shows that jurors
don’t do this.
• “Defendants play to the emotions and prejudices of the jury, so the
trial becomes theatrical, pushing the quest for justice aside.”
• A jury is not democratic because it allows an anonymous group of
unelected people to ignore laws that a democratically elected legis-
lature has enacted.
• The ideal juror is ignorant of the case prior to the trial. Thus, the
more well known the case is the less observant and aware of current
events the juror should be.
In spite of these concerns, Abramson (1994) defends the jury’s role

(9). It is, he says, a deliberative body rather than a representative body,
and therefore, one of the last bastions of true democratic deliberation. It
supports Aristotle’s point that an advantage to democracy is its gathering
up of the “collective wisdom” of the people.
Law professor Nancy King (2006) notes four advantages of a jury trial
over a bench trial.
• A jury protects litigants from abuse of judicial power.

• A jury brings community-based sense to fact-finding and to the
application of law to facts.
• A jury helps to promote acceptance of case outcomes and legitimacy
of the justice process.
• A jury increases the lay participation in our democracy.
Jurors have a lot of responsibility and a lot of rights for the relatively
brief time they serve. For the jury system to play its proper role in criminal
justice, jurors must fulfill these obligations well and exercise these rights
wisely. The professional life of a juror consists of six stages: the summons,
the voir dire process, the trial, the deliberations, the verdict, and the post-
trial. Each of these stages provides moral challenges and opportunities,
which we may consider in light of obligations of trustworthiness similar to
those of legal professionals.
Professionals have an obligation to be competent. There is no specific
obligation of competence for the juror. In fact, depending on how weak
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a party’s argument is, the attorney may hope for an incompetent jury that
is easy to persuade through theatrics and fallacious reasoning. However,
for the jury system to fulfill its role in criminal justice, the jurors should
be able to follow and evaluate both parties’ arguments, understand the
judge’s instructions, and engage thoughtfully with fellow jurors during
deliberations. This is a difficult task in the absence of constitutional literacy.
Professionals have an obligation to be diligent. In this spirit, the poten-
tial juror should answer the summons on the date and time that the sum-
mons specifies unless she can show that other matters have a better claim
on her time. During the voir dire process, she should listen carefully to
the judge’s questions. The empanelled juror should follow the trial closely,
take careful notes where allowed, pay careful attention to the judge’s
instructions, and participate collaboratively during deliberations—neither
monopolizing the conversation nor letting others do so.
One interesting problem in the context of diligence is the holdout juror
(Abramson 2006). The virtuous juror will not be excessively diligent, but
will persist in the name of fairness and truth. How persistent should the
juror be if she feels strongly about one side of the jury’s argument, while
all the other jurors have the opposing view? Consider the protagonist,
“Juror #8,” in the story, 12 Angry Men (Fonda and Lumet 1957). The
story begins with #8 as the lone holdout against the conviction of a young
man for murdering his father. #8 has not found the evidence convincing
beyond a reasonable doubt. By the end of the movie, he has convinced
the others of the flaws in the prosecution’s case, and the jurors acquit the
defendant. It is interesting to note that while #8 may be a heroic juror, it
is not clear that he is constitutionally literate. As noted above, the principle
of “beyond a reasonable doubt” is not in the Constitution, although the
principle has a long tradition of acceptance in the USA. #8 seems especially
concerned to adhere to this principle, although by doing so he also seeks
to ensure the defendant a fair trial, which is a constitutional guarantee.
Professionals have a duty to be honest and candid. The juror’s obliga-
tion to be honest and candid pertains to all the stages in the juror’s profes-
sional life-cycle. A person who receives a summons to jury duty and who
wishes to be excused should be honest about the reasons why. During
the voir dire process the potential juror should respond to all questions as
candidly as necessary to help the judge and the adversaries decide whether
to disqualify the juror. Also, the jurors should be honest with each other
during deliberations. Each juror should feel free to “speak his mind” and
should encourage others to do likewise. This will enhance the value of the
collective wisdom that justifies the jury system. Doing this well implies
constitutional literacy, which makes sense given that the juror’s job is a
constitutional one.
In general the professional obligation of loyalty, especially as it involves
avoiding conflicts of interest, does not present a big problem for the juror.
Perhaps the juror will answer the summons and deliberate diligently out
of patriotic loyalty, but this sense of loyalty is not essential to fulfilling the
juror’s task. An effective voir dire process eliminates much of the risk of
conflict of interest, and an empanelled juror who discovers such a conflict,
real or apparent, may bring it to the attention of the jury foreman or the
judge. If the judge decides there is no conflict or that there is no threat to
a fair verdict, then the juror need not worry about it any further.
Professionals have a duty to be beneficent and nonmaleficent. While
beneficence and nonmaleficence are always desirable, the juror’s focus
should be on justice. This means giving the defendant what he deserves
and, by extension, giving the plaintiff what he deserves. At times, this may
be unpleasant or harmful, and someone will walk away the “loser,” but it
would be unfair to accuse the juror of acting maleficently if the verdict is
just. Justice is a virtue, even if it may not always appear to be.
Note that the benefit of treating the defendant justly extends to all
whom the justice system affects. Thus, one can act beneficently toward the
whole while appearing to harm the individual. This is a classic example of
utilitarian decision-making.
Note too, that the jurors should treat each other well, avoiding harm
where possible.
Professionals have discretion and are obliged to use that discretion
wisely. Discretion refers both to confidentiality and to making decisions
on one’s own authority. During the juror’s tenure, issues of confidentiality
may emerge during the trial if the judge orders the jurors not to discuss
the case with anyone before deliberations and not to discuss the case with
non-jurors during deliberations.
Issues of confidentiality also arise after the trial. Jurors in the USA have the
right to speak publicly about jury deliberations once the trial is over, unlike
their counterparts in Great Britain and Canada (King 2006, 219). Since
the jurors’ job is over once the trial has ended, denying them the right to
speak about their experience would, arguably, violate their 1st Amendment
freedom of speech. This does not settle the question whether it is morally
right to speak about the trial after the fact. On the one hand, there is a social
benefit to such public discussion. At the least it may promote acceptance of
case outcomes and legitimacy of the criminal justice process (King 2006,
219). On the other hand, it would be unfair and possibly harmful to betray
108 C. DREISBACH
the confidences of fellow jurors (King 2006, 219). So the virtuous juror will
discuss deliberation publicly only to the extent that it is morally neither an
excessive nor deficient response to whatever prompted the disclosure.
The second meaning of discretion is the professional’s ability to act on
her own authority. In this sense, we may raise one of the most interesting
issues in jury ethics—jury nullification. This is an apparently constitution-
ally sound practice that appears to be rather unknown. Jury nullification
refers to the jury’s right to render a not guilty verdict even if the prosecu-
tion has proved its case. Juries have used it only rarely in the USA (Kleinig
and Levine 2006, 9). The rationale for this right is the belief that, in a
democracy, the people are the final arbiters of the law. The Constitutions
of California, Maryland, and Indiana specifically recognize this right
(Scheflin 2006, 143). None of the Constitutions of the other 47 states
denies this right, nor does the Constitution of the USA. Constitutional lit-
eracy is highly relevant to this fact and to the questions it might provoke.
Of course, the legal right of jury nullification does not necessarily make
it morally right, so let’s consider some moral pros and cons. Psychologist
Norman J. Finkel notes that some critics mistakenly regard jury nullifica-
tion as a wrong verdict (Finkel 2006). Instead, says Finkel (2006), nul-
lification should be seen as a victory for common-sense justice over “black
letter of the law” justice. Besides, he continues:
• If we knew the verdict in advance, we would not need a trial.

• Since we cannot read minds, only the jurors know what constitutes
reasonable doubt for them.
• Sometimes a jury must compromise because it doesn’t get the option
it wanted.
• A jury trial means that the jury has the discretion to convict or
acquit. (59)
Social scientist Candace McCoy (2006) adds that the jury determines the
truth in a trial, and the jury’s interpretation of the proceedings is the final
say. Thus, any verdict will be the legal truth, so the jury cannot be wrong
even if it nullifies.
On the other hand, Kleinig and Levine (2006) liken jury nullification
to civil disobedience, and note that nullification allows a jury to acquit a
bad person. Thus, even if jury nullification may be good sometimes, it may
not always be good.
McCoy (2006) points out that deontologists and consequentialists

would disapprove of jury nullification because it fails to follow universal
rules and it may be concerned more with the good of the defendant than
the greater good (176). Sociologists Harry Kalven and Hans Zeisel add
that a jury is “non-rule minded” since it will follow equity rather than
rules (cited in Kleinig and Levine, 2006, ix). If McCoy, Kalven, and Zeisel
are correct, then virtue theory is the basic theory that remains to defend
jury nullification. Jury nullification is a virtuous act when it is what the
defendant deserves and any other option would be excessive or deficient
relative to what the defendant deserves.
Regarding jury nullification, another question is whether a judge
should be required to notify the jury of its right to nullify. So far the courts
considering this question have answered in the negative. Moreover, it is
common for judges to include the instruction to the jury that if the pros-
ecution has proved its case, the jury must find the defendant guilty. Given
the right of nullification, this instruction is false (Dann 2006). According
to Kleinig and Levine (2006), however, “such instruction is likely to con-
tinue indefinitely” (9).
Social psychologist Shari Seidman Diamond (2006) offers an interest-
ing twist by suggesting that attorneys should be able to argue for or against
nullification before the jury. Scheflin (2006) adds that there has not been a
case in which “counsel’s attempt to argue nullification indirectly resulted
in contempt or disciplinary action” (143). So attorney-generated argu-
ments might be a good alternative to requiring a judge’s instructions to
permit jury nullification. But where is the Constitution in all of this? A
good amount of constitutional literacy may be necessary to answer this
question well.
Considering the nature and controversy of jury nullification promises
to be more fruitful if done with a sufficient degree of constitutional liter-
acy, even if—as in many Supreme Court decisions—there is no unanimous
resolution.
PROVISOS
This chapter closes with two provisos. First, constitutional literacy is no
guarantee of morally good behavior under the aegis of the Constitution.
Second, the Constitution from inception through the 27th Amendment has
exhibited fragility due in part to its ambiguities and in part to its structure.
110 C. DREISBACH
Constitutionally Literate, Ill Behaved

One example of ill behavior under the aegis of the Constitution is Chief
Justice Roger Taney’s decision in Dred Scott v. Sandford (1857). Dred
Scott had been a slave whose owners took him with them to free states
and federal territories. Having been in free territory, Scott proclaimed his
freedom and took his case to court. In a 7–2 decision, the Court ruled
against him, with Justice Taney declaring that African Americans could
never be citizens under the US Constitution, and thus had no legal stand-
ing in US Courts. This decision was abrogated by the Civil Rights Act of
1866 and the 14th Amendment. It may be tempting to regard Taney’s
claim as a sign of constitutional illiteracy, but it is probably more correct to
say that while he knew the Constitution well he manipulated it for his own
ill-conceived purposes. To be fair, he expressed the hope that his decision
would settle growing unrest concerning slavery, so he meant well to this
extent. But his disregard for the full personhood of the African Americans
was unconscionable.
A second example of ill behavior under the aegis of the Constitution
is the Westboro Baptist Church, a family-run hate group that uses the
1st Amendment rights to free speech and freedom of religion, to verbally
assault gays and lesbians and anyone whom the Church suspects of sup-
porting gays and lesbians, including agents of what the church takes to be
a corrupt federal government. Thus, for example, church members have
appeared at funerals for fallen military personnel, waving banners that say,
“God hates fags!” The church also rails against Jews, Muslims, liberals,
and Catholics among others who disagree with the Church’s idiosyncratic
take on Christian teaching.
In an 8–1 decision the US Supreme Court upheld the church’s right
to protest at military funerals, even if the protest caused anguish to the
grieving parties and those parties felt the church was invading their privacy
(Snyder v. Phelps 2011). This overturned a lower court decision that had
found for the family of Marine Lance Corporal Matthew Snyder, at whose
funeral the church protested in its usual way. Writing for the Supreme
Court majority, Justice John Roberts declared,
What Westboro said, in the whole context of how and where it chose to say
it, is entitled to ‘special protection’ under the First Amendment and that
protection cannot be overcome by a jury finding that the picketing was
outrageous.
Writing in dissent, Justice Samuel Alito accused the church of brutality

and disturbing the peace and wrote, “Our profound national commitment
to free and open debate is not a license for the vicious verbal assault that
occurred in this case.”
Two daughters of Fred Phelps, the church’s pastor, Shirley Phelps-
Roper and Rebekah Phelps-Davis were attorneys who exhibited strong
legal skills in the manipulation of the Constitution to their morally evil
ends. In short, constitutional literacy is no guarantee of morally desirable
behavior occurring under the aegis of the Constitution.
Note that we have not included Kim Davis, the county court clerk
from Kentucky and the subject of this chapter’s introduction, as one of
our examples here, because we are not sure of the degree to which she is
constitutionally literate. If she is constitutionally literate but still refuses on
1st Amendment grounds to fulfill her sworn duty, then this would give us
an apt third example of at least attempted morally bad behavior under the
aegis of the Constitution.
The Constitution Isn’t Perfect

The Constitution is an imperfect document. Its immediate beneficiaries
were white men, especially slaveholders. Fortunately, relative to its stated
purpose in the Preamble, the Constitution has improved with most of its
Amendments bringing more and more people under its protection. But
there is always room for improvement.
Political journalist Yoni Applebaum (2015), senior editor at The
Atlantic magazine, raises the possibility that many of the problems in
government, which we might blame on constitutional illiteracy, are due
to problems in the design of the Constitution itself. Applebaum cites an
argument by political theorist Eric Nelson (2014) that many revolutionar-
ies were revolting against British Parliament and a king who was powerless
against it. Had the king been more kingly, Nelson suggests, the colo-
nists might have felt less rebellious. But as matters stood, the colonists
took over the kingly responsibilities themselves—putting Parliament in
its proper place—and replaced the British monarchy with an American
“mixed monarchy” in which an uncrowned president had many powers of
a monarch: veto power, the power to pick his own cabinet, and the power
to make war. Recognizing the fragility of the proposed government, the
framers put in fail-safe mechanisms, including the Amendment process
and the checks and balances of the three branches on each other.
112 C. DREISBACH
This fragility is crucial to Applebaum’s warning that American govern-

ment will work only if the various players are willing to do their jobs well
and to work with each other. If any of these players goes on strike, the
Constitution will be of little use. Further, Applebaum suggests, the con-
gressional gridlock of late, accompanied by rigid partisanship, suggests that
either government is on strike or that it is close. In short, the Constitution
makes dysfunctional government possible as surely as the Constitution
provides a blueprint for effective government. Constitutional literacy may
not be a perfect antidote to the mess, but it might give government offi-
cials a higher sense of purpose than their personal ends.
The variety of views of the value of the Constitution itself should come
as no surprise. As we have noted, constitutional literacy does not guaran-
tee conformity about the meaning or value of the Constitution. The con-
stitutionally literate, therefore, should be prepared to question the value,
not just the meaning, of the document. A notable collection of thoughts
to this effect appears in a special issue of Time magazine (1987). Here are
a couple of examples:
The most obvious weakness of our Constitution is that the economic rights
of our citizens are not adequately addressed. Freedom must mean more than
the right to vote every four years for a candidate for president. Freedom
must also mean the right of a citizen to a decent income, decent shelter,
decent educational opportunity and decent retirement benefits. One is not
free sleeping out in the streets. One is not free eating cat food to survive.
Bernie Sanders, Socialist Mayor of Burlington Vermont (57)
I do wish that those at the Constitutional Convention who took a posi-
tion seeking to abolish slavery would have held out and handled the ques-
tion then. If they had done that, we could have prevented the War Between
the States. George Wallace, former Governor of Alabama (57)
Bernie Sanders eventually became a US Senator and in 2015 ran for nomi-
nation in the Democratic presidential primary. George Wallace remained a
committed segregationist until late in his life when he expressed regret for
his racist past and asked forgiveness from America’s Black citizens (Edwards
2009, 80). He died in 1998. It is fair to ascribe constitutional literacy to
both Sanders and Wallace, which makes their contrasting political views
all the more remarkable. What they do agree on is that the Constitution
has its flaws. One of the signs of constitutional literacy, therefore, is the
understanding that the Constitution, although the touchstone for social
and political life in the USA, is not sacrosanct.
SUMMARY
Having considered the nature and lack of constitutional literacy in the
two previous chapters, we have turned in this chapter to the question, So
what? What is the value of constitutional literacy? And we have suggested
two sorts of answers, one concerning the practical value of constitutional
literacy and the other concerning the moral value. In practical terms, peo-
ple who invoke the Constitution stand to be more effective and success-
ful in that invocation if they know what they are talking about. Whether
the point is to act on the promise to protect, preserve, and defend the
Constitution or to fulfill one’s civic duty as a non-sworn stakeholder in
constitutional government, constitutional literacy—knowledge of the
Constitution sufficient to invoke it properly—is crucial to success.
Being in a position to invoke the Constitution, by word or deed, puts
the agent in the position of having rights and responsibilities relative to
the position. Rights and responsibilities are a moral matter, inviting all
concerned to determine whether the agent has fulfilled the responsibilities
or properly exercised the rights. Moral matters often invoke references to
consequences, rules, duties or some combination of the three. So moral
assessment of an agent’s behavior may take into account the consequences
of the act: were all rights honored? Is the community better off for the
agent’s actions? The assessment may take rules into account: did the agent
obey the law? Is the law in question constitutional? And the assessment
may take duties into account: given that one should keep one’s prom-
ises, has the agent kept that promise when engaging in the behavior in
question? Then there is a virtue: a morally bad person may achieve good
consequences, obey rules, or fulfill duties. To be a morally good person is
to have good character, not just to do good things. To have good charac-
ter is to have virtue, as opposed to the vice of bad character. To be virtuous
is to be able habitually to know the good and do the good, that is, to find
habitually the mean between the extremes of deficiency and excess. To be
virtuous is habitually to be courageous, just, temperate, and prudent, the
four primary components of integrity. The moral value of constitutional
literacy then is its essential contribution to the agent’s ability to fulfill con-
stitutional rights or duties.
This chapter closed with a reminder that constitutional literacy does
not by itself guarantee morally good behavior, nor should we regard the
Constitution as sacrosanct even as we recognize its central role in the
political and social life of the USA.
114 C. DREISBACH
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CHAPTER 5
Assessing Constitutional Literacy
INTRODUCTION: THE 27TH AMENDMENT: UNREMARKABLE

CONTENT; REMARKABLE BACK STORY
The 27th Amendment, the most recent (ratified in 1992) looks unremarkable:
No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives shall
have intervened
In other words, Congress cannot give itself a raise that takes effect dur-
ing the session in which Congress approved it. Only subsequent sessions
of congress can benefit from the raise. This seems reasonable to the point
of raising the question why this Amendment was necessary. Moreover, the
Supreme Court has never cited the 27th Amendment in any formal find-
ing (Bernstein 1992).
But there is a rich backstory to this Amendment.
To begin, the 27th Amendment took over 202 years to ratify. It was
originally the second of 12 Amendments that a supportive Congress sent
to the states in 1789 for ratification. At the time, the states did not ratify
this one or the first of the 12, involving congressional apportionment. The
states did ratify the 3rd through 12th Amendments on Congress’s list, giv-
ing the USA its Bill of Rights. Note that the 1st Amendment in the ratified
Bill of Rights was the third on the list that Congress approved. Thus, any

DOI 10.1057/978-1-137-56799-4_5
120 C. DREISBACH
reference to the 1st Amendment’s superiority to all others by the privilege

of its place is a misunderstanding.
When Congress put this Amendment forward in 1789, it was to settle
an argument that led first to Article 1, sec. 6, cl. 1 of the Constitution:
The Senators and Representatives shall receive a compensation for their ser-
vices, to be ascertained by law, and paid out of the treasury of the United
States.
Participants in the convention had inherited the debate. As law Professor

Richard Bernstein (1992) puts it,
The Americans' principal model for a national legislative institution was the
British Parliament. From Parliament, Americans derived their ideas of legis-
lative practice and procedure and their ideas about how legislatures should
respond to national problems and issues. Even after Congress was set in
motion under the Constitution, notable American politicians often had
recourse to Parliamentary models and precedents. (500)
According to Bernstein, members of parliament (MPs) received wages

from their constituents through the seventeenth century. Then, through
a series of regulations, only wealthy candidates or candidates that could
get their hands on wealth had a chance to become MPs. This had the
effect of candidates buying their positions as MPs—a degree of corruption
which led to further misdoings as would-be MPs did what they could to
get elected. Mindful of this corruption, colonial governments in America
resolved to pay their representatives a fair wage to discourage corrupting
temptations.
In this spirit, during the drafting of the Constitution, there was more
agreement that congressmen should receive a good salary than there was
agreement about who should pay them.
One relevant comment from the Convention reminds us that the fram-
ers were, for the most part, no fan of democracy. Commenting on con-
gressional salaries, Elbridge Gerry claimed that
The evils we experience flow from the excesses of democracy [and] one prin-
cipal evil [of democracy is] the want of due provision for those employed
in the administration of Governnt [sic]. It would seem to be a maxim of
democracy to starve the public servants. (Cited in Bernstein 1992, 503)
ASSESSING CONSTITUTIONAL LITERACY 121
Ben Franklin offered the only opposition to congressional salaries,

arguing that congressional positions should not be appealing for their pay,
since this would attract mercenaries rather than patriots. Franklin’s oppo-
sition went nowhere (Bernstein 1992, 503, n. 7).
Upon agreement that congressmen should receive a salary, the discus-
sion turned to whether that salary should come from the states or from the
national treasury. Proponents of state-payment included Oliver Ellsworth
of Connecticut and Hugh Williamson of North Carolina. For Ellsworth.
[T]he manners of different States were very different in the Stile [sic] of liv-
ing and in the profits accruing from the exercise of like talents. What would
be deemed therefore a reasonable compensation in some States, in others
would be very unpopular, and might impede the system of which it made a
part. (Cited in Bernstein 1992, 504)
For Williamson, because newer states would be so poor, they would not
be able to make sufficient contributions to the national treasury. Thus, if
congressional wages came from the national treasury, older states would
have to pay “men who would be employed in thwarting their measures &
interests” (Cited in Bernstein 1992, 504).
Proponents of paying from the national treasury prevailed in the wake
of arguments from George Mason and Alexander Hamilton.
For Mason, allowing each state to set its congressmen’s salaries would
create an inequality that worked against the desired equality in each con-
gressional chamber (Bernstein, 1992, 504). Moreover, the states might
pay so little that strong candidates might not run for office.
For Hamilton,
Those who pay are the masters of those who are paid…. [There is a] difference
between the feelings & views of the people & the Governments of the States
arising from the personal interest & official inducements which must render
the latter unfriendly to the Genl. Govt. (Cited in Bernstein 1992, 505)
The result at the convention was the clause providing that congressmen
be paid from the national treasury. The proposed Amendment, which did
not make it as part of the Bill of Rights, was meant to clarify the clause.
Turning to the Amendment’s history after being left out of the Bill
of Rights, note that prior to the 18th Amendment, Prohibition, in 1919,
Amendments that Congress sent to the states for ratification had no deadlines.
122 C. DREISBACH
In 1939, the US Supreme Court declared that states were free at any time
to ratify constitutional Amendments without deadlines (Coleman v. Miller
1939).
In 1982, Gregory Watson, an undergraduate student at the University
of Texas, Austin, earned a “C” for a paper he wrote on this subject. He
argued that since the Amendment had no deadline, states could still ratify
it. He also proposed that states do that to add protection against con-
gressional corruption. Sharon Waite, his instructor, assigned a “C” grade,
claiming that his argument was “unrealistic” (Frantzich 1999, 1–24, 27).
Undaunted, Watson began writing letters to the states that had not rati-
fied the Amendment, making a case for their approval. Six states out of 13
had approved the Amendment in 1789, Kentucky approved it in 1792,
Ohio approved it in 1873, and Wyoming approved it in 1978. In the later
part of the twentieth century, 38 states (three-fourths of 50) needed to
approve an Amendment for it to become law. States began responding
positively to Watson’s plea, with Alabama, Missouri, and Michigan, ratify-
ing in quick succession, May 5–7, 1992, and reaching a count of 39 states
for the Amendment.
At the time, it was assumed that Michigan was the 38th state to approve
until Kentucky noted that it had originally approved the Amendment in
1792. This information came to light after Don W. Wilson, Archivist of
the USA, certified on May 18, 1992, that the Amendment was ratified.
Because Wilson’s decision was recorded in the Federal Register the next
day, the official record says Michigan was the 38th state to ratify, when
Missouri was in fact.
The Archivist was acting within the law, which states that “Whenever
official notice is received at the National Archives and Records
Administration that any amendment proposed to the Constitution of
the United States has been adopted, according to the provisions of the
Constitution, the Archivist of the United States shall forthwith cause
the amendment to be published…” (1 U.S. Code §106b). However,
Senator Robert Byrd (D-W. VA) and Speaker of the House Tom Foley
(D-Washington) complained that Congress should have approved the
Amendment before Wilson certified its ratification. The complaint gained
little traction, since both houses of Congress resolved on May 20, 1992,
to recognize the ratification.
Seeing how much more interesting the story of the 27th Amendment is
when one knows this backstory, the value of constitutional literacy should
be all the more obvious, as should be the value of assessing this literacy.
Knowing this particular story might not make police officers better at their
jobs or jurors better at theirs, but as Chap. 4 argues, such information
will add to the repertoire of constitutional knowledge that is of general,
practical, and moral value to anyone with a stake in the Constitution. Our
next question is how to assess that literacy. This chapter examines one
approach, to which Chap. 3 introduced us.
THE TEST
In 2000, I designed and began teaching an upper-level college course,
Applied Ethics, the Constitution, and Leadership, for Johns Hopkins
University’s Division of Public Safety Leadership. I have taught this course
at least once every year since. Most of the students are law enforcement
professionals at the national, state, or local levels. Thus, most of them have
sworn an oath to the Constitution. I begin the course with an assessment
of how much the participants know about the Constitution and refer back
to this assessment as the course progresses. The point of the assessment is
to help participants see how much they know about the Constitution and
how much more there is to know. In the early years of the course, I used a
long list of multiple choice and true-false questions that were not differen-
tiated into categories or listed in any particular order. Over time, I divided
the list into eight levels of increasing depth, as Chap. 2 discusses them, to
indicate a possible range of constitutional literacy. Originally, I had imag-
ined that the eight levels represented eight levels of difficulty qualitatively,
but each level represents an increase in the quantity of knowledge; at any
of the eight levels one’s knowledge may be cursory or deep. Thus, one
might think of the eight-level model as concentric circles rather than a
ladder: to be conversant on all eight levels is to have a high level of liter-
acy quantitatively, but not necessarily qualitatively. For example, Level 8 is
Familiarity with the more arcane debates about, for example, the history and
nature of constitutional interpretation. At this level, one might know what
textualism is without necessarily being able to make a case for or against
it. Textualism in the context of this discussion is the view that one ought
to interpret the Constitution by being faithful to its words. This is a form
of originalism, but it differs from another form—intentionalism—which
looks for the meaning behind the words. Constitutional textualism is akin
to biblical fundamentalism, which takes the Bible at its word, without pre-
suming to read too much into it. One might know the basics of textual-
ism or fundamentalism without being able to make a good argument for
124 C. DREISBACH
or against either. Or one might have a scholarly understanding of one or

both, with the ability to discuss critically the foundations of each theory
and the arguments for or against them. Or someone may have a level of
knowledge about either or both that falls somewhere in-between a passing
acquaintance and a scholarly understanding. All of this would take place on
Level 8, as I have conceived the model. Thus, at each level, it is possible
to distinguish at least three degrees of difficulty, easy, medium, and hard.
These details emerged as I compared the numbers of correct and incorrect
answers.
Initially, I took my next step to be a weighting of these answers, first
to see whether the set of eight categories was legitimate for research pur-
poses, and second, to see which questions belong in which level of dif-
ficulty. Prior to developing such an instrument, however, I had occasion,
through conversation with participants and experts in developing research
instruments of the sort that would be useful to my study, to reconsider
organization of the questions. This resulted in a more compact structure
and a more elaborate system of distinctions, which might prove more use-
ful than the eight-level approach in determining constitutional literacy.
As Chap. 3 notes, this second approach starts with two basic pairs of
distinctions: historical v. thematic, and internal v. external. Anecdotally, it
appears that people who invoke the Constitution are often more comfort-
able speaking in one of these four areas than in the other three. Thus, a
test for constitutional literacy that incorporates this model might be better
at pinpointing for each individual where her strengths and weaknesses lie.
This pair of distinctions yields four broad categories: internal themes,
internal history, external themes, and external history.
Within each category, the questions may be easy, of medium difficulty,
or difficult.
The multiple choice/true-false exam on which this chapter is based
consists of 271 questions ranging in difficulty as follows:
• EASY: Assumes a complete reading of the Constitution or basic edu-

cation about the Constitution in primary or secondary education.
No interpretation of the Constitution or related texts is necessary.
• MEDIUM: Requires an especially close reading of the Constitution
or related texts, some interpretation of those texts, and/or some
research into the historical, philosophical, or political context of
those texts.
• DIFFICULT: Requires close reading, interpretation, or research to a

higher degree than the questions of medium difficulty.
One way to distinguish among these three is to tie expectations of what

one should know to the assessment of someone’s constitutional literacy.
“Easy” suggests knowledge necessary to basic constitutional literacy;
“medium” suggests knowledge necessary to a moderately high degree of
constitutional literacy; and “difficult” suggests knowledge necessary to a
high level of constitutional literacy. Note that “necessary,” is not the same
as “sufficient.” For example, sufficient proof of a high degree of constitu-
tional literacy would include a person’s being able to answer most of the
difficult questions correctly. At this point we are speaking in qualitative
terms; quantifying these values is another task altogether.
The questions are organized according to whether they emphasize
a theme or history, and whether they pertain to the Constitution text
directly (“internally”) or indirectly (“externally”). The degree of difficulty
is confirmed generally by the percentage of test takers who answered the
questions correctly. However, some questions appear to have been less dif-
ficult to answer than I anticipated. Future fine-tuning of this project may
lead to different designations for some of the questions—or different ways
of stating the questions.
Note that in some sections of the test, the set of questions may not
reflect all three levels of difficulty.
The following discussion of each of these categories and subcategories
provides the opportunity to go into detail about information of signifi-
cance to the constitutionally literate, as the examples below suggest.
Recall from Chap. 3 an outline of the test.
Category I: Internal themes
• Distinguishing the Constitution from Other Texts:

• Requiring Reading the Constitution Only
• Requiring Extra Thought beyond a Reading of the Constitution,
such as Interpretation or Research
Category II: Internal history
• Pre-Ratification (before 1787)

• Post-Ratification (after 1787)
126 C. DREISBACH
• Directly Relevant to the Constitution

• Indirectly Relevant to the Constitution
Category IV: External history
• Pre-Ratification
• Post-Ratification
– Directly Relevant to the Constitution
– Indirectly Relevant to the Constitution
In Chap. 3, this outline is the foundation of one argument for a per-
vasive lack of constitutional literacy among sworn law enforcement pro-
fessionals. In this chapter this same outline serves as the foundation for
discussing one way to assess constitutional literacy. In Chap. 6, this outline
serves as a foundation for thinking about how to promote and improve
constitutional literacy.
To see how this outline might provide a useful foundation for assessing
constitutional literacy, let’s look at the categories (internal themes, internal
history, external themes, and external history) and their subcategories more
closely, using sample questions to illustrate and giving background informa-
tion relevant to the question. For each sample question below, its number in
the list of samples is followed by my anticipation of the question’s difficulty
(easy, medium, or difficult). Next comes the question and the correct answer.
This is followed by the number of correct answers, the number of students
who attempted to answer the question, the resultant percentage of correct
answers among those who responded, and the percentage of correct answers
if one takes into account all 90 students who received the test, including
those who chose not to answer the given question. Finally, in most cases,
comes background information relevant to the question. This will help in
assessing how well students did in answering the question relative to how
well one would have expected them to do. It will also demonstrate how one
might follow up on a question after rendering the assessment.
Category I: Internal Themes

“Internal” refers to the Constitution itself—its contents; implications; and
history, both pre- and post-ratification. “Themes” refers to the contents
and implications of the Constitution itself, that is, internal themes, or of
texts and data that are directly or indirectly related to the Constitution,
that is external themes. External history refers to historical data and events
that relate directly to the Constitution or indirectly to the Constitution,
but of which the Constitution is not the central subject.
There are at least three levels of complexity within the category of Internal
Themes. First, is distinguishing the Constitution from other texts. This has
three parts: recognizing a selection from the Constitution, knowing that a
selected text is not from the Constitution, and knowing what the text is if
it is not from the Constitution. This book opened with examples of sworn
officials confusing the Declaration of Independence and the Constitution.
This suggests a low level of constitutional literacy, which is remarkable for
sworn officials, since they should be able to identify the contents of the
Constitution and recognize the Declaration of Independence as a separate
text. . On the other hand, this chapter opened with the 27th Amendment.
This is so rarely discussed that failure to recognize it on sight would not
necessarily prove a troublesome degree of constitutional illiteracy.
Distinguishing the Constitution from Other Texts
Example 1 (Easy):
From what document is the following: “Treason against the United States,
shall consist only in levying war against them, or in adhering to their ene-
mies, giving them aid and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or on confession
in open court.”
(a) Declaration of Independence

(b) Articles of Confederation
(c) The New Jersey Plan
(d) U.S. Constitution
The answer is d, (Art. 3, sec. 3).
Correct answers Respondents % Correct % Correct of all 90 students
70 90 78 78
It is common knowledge among the sworn professionals with whom I

work that treason is the only crime that the Constitution defines and for
which it sets a standard. Thus, I would have expected that more than 78 %
of the respondents would have answered this question correctly.
128 C. DREISBACH
Background information: in 1787 England, there were seven kinds

of “high” treason—that is, treason against the sovereign. Petty treason
referred to certain acts of a subordinate against a superior. High treason
included wishing or imagining the death of the king and his heirs; “violat-
ing” the king’s wife, eldest unmarried daughter, or daughter-in-law of the
heir to the throne; waging war against the king; giving the king’s enemies
aid and comfort; counterfeiting the King’s seal; counterfeiting the king’s
money; and killing the chancellor, treasurer, or justices (Blackstone 1840,
54–60). The Constitution preserved two of these: waging war against the
USA and giving the enemy aid and comfort.
Waging or “levying” war, requires a gathering of people “for the trea-
sonable purpose, to constitute a levying of war” (Ex Parte Bollman 1807).
The requirement of two witnesses, was taken from England’s Treason Act
of 1695, which had preserved this provision from older Treason Acts. In
the 1940s, the US Supreme Court affirmed this requirement in cases of
actual treason (Cramer v. United States 1945), but not for proving intent
(Haupt v. United States 1947).
James Madison (1788a) provides a clue as to why the Constitution
makes a point of defining this crime, but no other. In Federalist No. 43
he writes
As treason may be committed against the United States, the authority of

the United States ought to be enabled to punish it. But as new-fangled and
artificial treasons have been the great engines by which violent factions, the
natural offspring of free government, have usually wreaked their alternate
malignity on each other, the convention have, with great judgment, opposed
a barrier to this peculiar danger, by inserting a constitutional definition of
the crime, fixing the proof necessary for conviction of it, and restraining the
Congress, even in punishing it, from extending the consequences of guilt
beyond the person of its author.
Example 2 (medium):
From what document is the following?
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
(a) Declaration of Independence

(b) Articles of Confederation
(c) The Massachusetts Bay Colony Bill of Rights

The correct answer is d, (16th Amendment).
Correct answers Respondents %Correct % Correct of all 90 students
70 90 78 78
Background information: when James Madison, Alexander Hamilton,

and others pushed for a convention to fix the shortcomings of the Articles
of Convention, they had two primary concerns. First, there was a need
for a national military to provide security for all of the states, rather than
relying on each state to muster a militia as needed. Second, there was a
need for a national system of collecting revenue, primarily through taxes,
to pay for the military and pay the nation’s debts. In short, one of the
two major reasons for replacing the Articles of Confederation with the
US Constitution was to give the federal government the power to collect
taxes. Article I sec. 8, cl. 1 gives this power.
Article I, sec. 9, cl. 4 limits this power:
No capitation, or other direct, Tax shall be laid, unless in proportion to the

Census or Enumeration herein before directed be taken.
The distinction between a direct tax and an indirect tax is important

here. According to the US Internal Revenue Service (2016),
Taxes can be either direct or indirect. A direct tax is one that the taxpayer
pays directly to the government. These taxes cannot be shifted to others. A
homeowner pays personal property taxes directly to the government. A fam-
ily pays its own federal income taxes.
An indirect tax can be passed on to another person or group. A business may
recover the cost of the taxes it pays by charging higher prices to customers.
A tax shift occurs when the business shifts its taxes to others.
The Constitution allowed the federal government to impose direct taxes

only on states according to their population. For example, if New York
had 20 % of the national population, New York had to pay 20 % of the
taxes necessary to fund federal government initiatives. At this point the
130 C. DREISBACH
government could not impose direct taxes on individuals. This was the
case until 1894.
In 1894, Congress passed the Revenue Act, also known as the Wilson-
Gorman Tariff, which included a 2 % income tax on income over $4000
(Ch. 349 §73, 28 Stat. 570, August 27, 1894). This was the first national
income tax imposed during peace time (Henchman 2013).
Obeying the law, Farmers Loan and Trust began paying tax on income
it paid in wages and dividends, and reporting this to the federal govern-
ment. Charles Pollock, a stockholder in the company, sued on the ground
that the income tax was a direct tax which could not be imposed on
individuals (Pollock v. Farmers’ Loan & Trust Company 1895). In a 5–4
decision the US Supreme Court agreed, thus rendering the income tax
unconstitutional (Henchman 2013).
Proponents of a federal income tax prevailed with the 16th Amendment,
giving the US Congress the power to impose an income tax on individu-
als. Note that the wording of the Amendment does not limit these taxes
to collecting revenue. Congress may also use this power as a means of
promoting federal policies or discouraging certain behaviors. A recent
and controversial example of this is the US Supreme Court’s decision in
National Federation of Independent Business v. Sebelius (2012). The case
was a challenge to the Affordable Health Care for America Act (2009),
also known as “Obamacare,” which included a tax penalty on any tax payer
who did not have health insurance by 2014. In a 5–4 decision the Court
declared the provision Constitutional over objections that Congress did
not have the authority to compel people to buy insurance.
Example 3 (Difficult):
From what document is the following? “As the government of the United
States of America is not in any sense founded on the Christian Religion,-as it
has in itself no character of enmity against the laws, religion or tranquillity
of Musselmen,-and as the said States never have entered into any war or act
of hostility against any Mehomitan nation, it is declared by the parties that
no pretext arising from religious opinions shall ever produce an interruption
of the harmony existing between the two countries.”
(a) Treaty of Paris

(b) Treaty with the Bey of Tripoli
(c) Articles of Confederation
(d) Constitution of the United States
The correct answer is b. The passage is from Article 11 of the Treaty

with the Bey of Tripoli.
14 89 16 16
To be fair, the main purpose of this question is to decide whether the

passage comes from the Constitution. Seventy-four out of 89–83 %–indi-
cated correctly that the passage is not from the Constitution.
Background information: note that the Treaty with the Bey of Tripoli
makes a legally binding statement that America is not a Christian nation.
Still the question whether America is a Christian nation persists. In
1797, Congress ratified the Treaty of Peace and Friendship between the
United States of America and the Bey and Subjects of Tripoli of Barbary
(United States 1797). Article 11 of the treaty is the passage just quoted.
Since ratified US treaties have the force of law and since this law has
never been abrogated, the legal position stands.
Some have argued that this legal point changed with the US Supreme
Court decision in Church of the Holy Trinity v. United States (1892). In
1880, Congress passed a law prohibiting “the importation and migration
of foreigners and aliens under contract or agreement to perform labor
in the United States, its Territories, and the District of Columbia” (23
Stat. 332, c. 164). In 1887, Holy Trinity Episcopal Church in New York
hired E. Walpole Warren, a British citizen, to be its rector. The US gov-
ernment tried to prevent the appointment under the 1880 act, and the
church sued on the grounds of its 1st Amendment freedom of religion.
The Court found for the church. In delivering the decision of the court
Justice Brewer cited several court cases and common practices that point
to America’s being a Christian nation and he concluded:
These, and many other matters which might be noticed, add a volume
of unofficial declarations to the mass of organic utterances that this is a
Christian nation.
Some have suggested that this in effect settles the legal matter in favor of
those who claim that America is a Christian nation. But note that the deci-
sion in this case, was that Holy Trinity had the right to hire whom it wanted
to be its pastor, whether from the USA or not. The decision was not that
Article 11 of the Treaty with the Bey of Tripoli had been overruled.
132 C. DREISBACH
Example 4 (difficult):
From what document is the following? “No freemen shall be taken or impris-
oned or disseised or exiled or in any way destroyed, nor will we go upon him
nor send upon him, except by the lawful judgment of his peers or by the law
of the land.”
(a) Code of Hammurabi

(b) Magna Carta
(c) Declaration of Independence
(d) US Constitution
The correct answer is b: the passage comes from clause 39 of the Magna
Carta (1215).
37 86 43 41
Sixty-two respondents out of 86–72 % –correctly indicated that the pas-

sage is not from the Constitution.
Background information: a careful reader of the Constitution would
remember seeing the word “disseised,” if it had appeared there. Thus,
it should be apparent to someone with a modest level of constitutional
literacy that this passage is not from the Constitution. That the passage
comes from the Magna Carta will be less obvious.
The word “disseise,” also spelled “disseize,” means to remove people
wrongfully from their property. Note that this passage allows such an act
only by “lawful judgment of his peers or by the law of the land.” This pas-
sage comes much closer to guaranteeing the accused a trial by a jury of one’s
peers than one finds in the Constitution’s 6th Amendment, which says,
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed… (My emphasis)
From which document is the following? “If a judge try a case, reach a deci-
sion, and present his judgment in writing; if later error shall appear in his
decision, and it be through his own fault, then he shall pay twelve times the
fine set by him in the case, and he shall be publicly removed from the judge’s
bench, and never again shall he sit there to render judgment.”
(a) Code of Hammurabi

(b) Magna Carta
(c) Declaration of Independence
The correct answer is a: it is Law 5 (out of 282 laws) from the Code of
Hammurabi, c. 1754 BCE.
34 86 40 38
Seventy-six out of 86 respondents—88 %– indicated correctly that this

passage is not from the Constitution.
Although this code is almost 3800 years old, its language, in transla-
tion, sounds legally modern enough to be from the Constitution. This
reflects the significance of ancient precedents of the US Constitution,
about which more is said below.
Requiring Reading the Constitution Only

A second level of complexity within the category of internal themes
requires reading the Constitution only, with no comparison to other texts.
For example, having read the Constitution, a person of moderate consti-
tutional literacy should be able to recognize the 27th Amendment, the
subject of this chapter’s introduction, even if, absent any indicator, the
person does not know what part of the Constitution the selection is.
Example 6 (Easy):
Which amendment guarantees the right of the accused to a speedy trial?
(a) 5
(b) 6
(c) 7
(d) 8
134 C. DREISBACH
The correct answer is b, The 6th Amendment.
38 89 43 42
Given the importance of the 6th Amendment to law enforcement, it is

surprising how few of the respondents answered this question correctly.
Almost as surprising was that 40 out of 89 respondents—45 %–answered
a, the 5th Amendment.
Background information: here is the text of the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusa-
tion; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defense.
The right to a speedy trial, which the 6th Amendment guarantees, has
a long pedigree. In 1166, Henry II of England established a set of civil
and criminal laws, known as the Azzize of Clarendon. In it he included
this provision:
4. And when a robber or murderer or thief or the receivers of them be arrested

… if the justices are not to come quite soon into the county where the arrests have
been made, let the sheriffs send word … to one of the nearer justices … and the
justices shall send back word … where they wish to have the men brought before
them; and the sheriffs shall bring them before the justices … there before the
justices let them make their law. (Cited in Shestokas 2014)
The Magna Carta, 49 years later, agreed:
To no one will we [King John] sell, to no one will we refuse or delay, right or
justice (Provision 40; cited in Shestokas 2014).
English Jurist Sir Edward Coke, best known for his Institutes of the
Lawes of England (1628–1644; 4 volumes) and law reports (13 parts),
reporting on cases in which he had participated or in which he had an
interest, declared that
The law of England is a law of mercie…for three causes. First, that the inno-
cent shall not be worn and wasted by long imprisonment, but (as hereby
and by the statute of the Magna Charta appeareth) speedily come to trial…
(cited in Herman 2006, 162)
Chief Justice Earl Warren cited Coke favorably on this point in Klopfer
v. North Carolina (1967), as did Justice John Paul Stevens in his dissent
in Moody v. Daggett (1976).
Section 8 of The Virginia Declaration of Rights (1776), presaging the
6th Amendment, says
That in all capital or criminal prosecutions a man hath a right to demand the
cause and nature of his accusation, to be confronted with the accusers and
witnesses, to call for evidence in his favor, and to a speedy trial by an impar-
tial jury of twelve men of his vicinage, without whose unanimous consent he
cannot be found guilty… (My emphasis)
While the accused is the most obvious beneficiary of a speedy trial, the
accusers benefit by avoiding losses that can occur over time, such as loss
of witnesses or loss of accurate memories of witnesses, and society benefits
from avoiding monetary and psychological costs associated with a drawn
out trial.
Note that the documents cited so far do not define “speedy,” nor does
the 6th Amendment. In 1972 The US Supreme Court addressed this in
Barker v. Wingo (1972) holding that the precise meaning of “speedy”
depended on the case, but that four factors should be applied:
How long was the delay?

Why did the delay occur?
When and how did the defendant assert his right to a speedy trial?
Whether the delay has prejudiced the court against the defendant
Dissatisfied with the Court’s failure to define “speedy” more defini-

tively, Congress enacted the Speedy Trial Act of 1974 (88 Stat. 2080).
According to this statute, the prosecution must file information or an
indictment within 30 days of the arrest, and the trial must begin within
70 days after that unless the defendant appeared before an officer of the
court later than 30 days after the indictment, in which case the 70-day
clock starts then. This has not prevented appeals based on lack of speedy
trial. In Zedner v. United States (2006), a unanimous Supreme Court held
that a defendant cannot waive his right to a speedy trial. But also see, for
136 C. DREISBACH
example, Boyer v. Louisiana (2013) in which the court decided 5–4 not to
hear the case of a defendant whose trial was delayed for five years because
the State could not afford to hire a public defender for him. This had the
effect of denying Boyer his right to a speedy trial.
Example 7 (Easy):
Which Article is about the executive branch?
(a) I
(b) II
(c) III
(d) V
The correct answer is b, Article II.
37 87 43 41 %
Background information: the first three Articles of the Constitution

pertain, in descending order of importance, to the legislative branch, the
executive branch, and the judicial branch. The relative importance is sug-
gested at least by the length of the Article.
Article 1: 2267 words, 10 sections
Article II: 1025 words, 4 sections
Article III: 377 words, 3 sections
This imbalance of importance is borne out by the imbalance of power.
Congress can fire its own, fire the president (through impeachment and
removal), and fire justices (through impeachment and removal). Congress
can set its own salary, as the opening of this chapter discusses; as well as the
salary of the president and the Supreme Court justices. The President can-
not fire senators, representatives, or justices. Nor can the President appoint
his cabinet or justices without congressional consent. And constitutionally,
justices have the least power of all. They cannot hire or fire themselves, the
President, or any member of congress. They cannot set their own salaries.
And they cannot enforce their own decisions without help from the con-
gress and executive branches.
James Madison (1788b) confirms this in Federalist 51 when, writing on
“the Proper Checks and Balances between the Different Departments,”
he says
But it is not possible to give to each department an equal power of self-defense.

In republican government, the legislative authority necessarily predominates.
The remedy for this inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election and different prin-
ciples of action, as little connected with each other as the nature of their com-
mon functions and their common dependence on the society will admit. It may
even be necessary to guard against dangerous encroachments by still further
precautions. As the weight of the legislative authority requires that it should
be thus divided, the weakness of the executive may require, on the other hand,
that it should be fortified. An absolute negative on the legislature appears, at
first view, to be the natural defense with which the executive magistrate should
be armed. But perhaps it would be neither altogether safe nor alone sufficient.
On ordinary occasions it might not be exerted with the requisite firmness, and
on extraordinary occasions it might be perfidiously abused. May not this defect
of an absolute negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger department, by
which the latter may be led to support the constitutional rights of the former,
without being too much detached from the rights of its own department?
Example 8 (Easy):
Which amendment gives women the right to vote?
(a) 15
(b) 17
(c) 19
(d) 21
The correct answer is c, the 19th Amendment.
35 88 40 39
This score suggests either that I was wrong to regard the question as easy
or that lack of constitutional literacy among the respondents is higher
than one would hope.
Background information: here is the text of the 19th Amendment:
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of sex. Congress
shall have power to enforce this article by appropriate legislation.
138 C. DREISBACH
The original Constitution did not list a right to vote and it allowed
each state to determine the voting qualifications of its residents. Several
Amendments have made it more difficult for states to prevent people from
voting. The 15th Amendment prohibits states from preventing voting on
the basis of “race, color, or pervious condition of servitude.” The 17th
Amendment requires states to select their US Senators by popular vote.
Prior to this Amendment, state legislatures selected their US Senators.
The 19th Amendment, as we have just seen, denies states the right to pre-
vent voting “on account of sex.” The 23rd Amendment gives the District
of Columbia the right to have electors in the presidential election. The
24th Amendment prohibits states from imposing a poll tax, which had
made it difficult for poor people to vote. And the 26th Amendment pre-
vents states from denying the vote to anyone 18 or over on account of
age. Moreover, the Voting Rights Act of 1965, followed by five legislative
Amendments through 2006, made it even more difficult for states to dis-
criminate against voters on the basis of race or ethnicity. Thus, over time,
states have become less free to determine who among their residents is
eligible to vote.
Note that while the 19th Amendment prohibited states from prevent-
ing voting on the basis of gender, some states permitted women to vote
before the 19th Amendment was ratified in 1920 (Kelly 2013). From
1787 to 1807 New Jersey allowed women to vote (Heritage Foundation
2016). According to the National Constitution Center (2006)
• Between 1890 and 1918, 15 states made it legal for women to vote
in any election in which men could vote.
• Between 1913 and 1919, 12 additional states permitted women to
vote in presidential elections.
• Twenty-one states allowed women to vote only after the 19th
Amendment was ratified.
Example 9 (Medium):
T/F. Originally there was to be one representative for every 30,000 people
represented.
This is true according to Article 1, sec. 2.
57 83 69 63
Background information: here is the text:
The number of Representatives shall not exceed one for every thirty thou-
sand, but each state shall have at least one Representative; and until such
enumeration shall be made, the state of New Hampshire shall be entitled to
chuse three, Massachusetts eight, Rhode Island and Providence Plantations
one, Connecticut five, New York six, New Jersey four, Pennsylvania eight,
Delaware one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.
Since Rhode Island did not send a delegate to the Convention, we ought
not to be surprised that the attendees were only so generous.
In 1787, C. C. Pinckney, a South Carolina delegate to the Constitutional
convention, estimated that the US population –for the purposes of determin-
ing the number of US representatives–was approximately 2.6 million. Thus,
the House of Representatives should have approximately 85 members.
In 1929, the US population was approximately 122 million, which would
have required 4066 US Representatives under the original Constitution. But
there were 435 Representatives at the time and Congress decided to cap the
number at 435, resulting in the Permanent Apportionment Act of 1929 (ch.
28, 46 Stat. 21, 2 U.S.C. § 2a; History, Art & Archives 2016). Had the original
formula stood, the 113th Congress (2013–2015) would have 10,667 mem-
bers representing 320 million people! (United States Census Bureau 2016).
Example 10 (Medium):
Here is another question I anticipated being of medium difficulty to
answer.
Which amendment establishes an income tax without apportionment?
(a) 12
(b) 14
(c) 16
(d) 18
The correct answer is c: the 16th Amendment.
39 83 47 43
140 C. DREISBACH
This is the second time that the 16th Amendment is the subject of the
question. Earlier it appeared in the context of deciding whether a passage
was from the Constitution or some other document. Seventy-eight per-
cent of the respondents correctly identified it as being in the Constitution.
Unless the respondent is guessing, giving the correct answer in the
earlier case requires only having read the Constitution cursorily, without
knowing what the words mean. In the present case, asking the respondent
to identify the specific Amendment requires a more careful reading and,
perhaps, some memorization. One could make the question even more
difficult by asking, for example, what precisely the Amendment means,
what element from the Constitution is being amended, or what the con-
tent of the Amendment is.
Requiring Extra Thought Beyond a Reading of the Constitution, Such

as Interpretation or Research
The third level of complexity within the category of internal themes
requires extra thought beyond a mere reading of the Constitution, such
as interpretation or research. Why, for example, does the Constitution call
for members of Congress to be paid from the national treasury, rather
than from the states—a subject that appears in the opening of this chapter?
There are no easy questions in this category, since knowing the answers
requires going above and beyond merely reading the Constitution.
T/F. The Constitution states that a suspect is innocent until proven guilty.
This is false.
42 79 53 47
Background information: the Constitution does not explicitly recog-

nize a right to the presumption of innocence nor does it say anywhere that
the defendant is innocent until proven guilty. The principle is an old one,
and there are several places in the Constitution that imply the principle.
It was a principle in Ancient Roman Law (Watson 1998). Also, Article
Nine of the French Declaration of the Rights of Man (1789), says
As all persons are held innocent until they shall have been declared guilty, if
arrest shall be deemed indispensable, all harshness not essential to the secur-
ing of the prisoner’s person shall be severely repressed by law.
In 1895, the US Supreme Court established the principle explicitly

in deciding Coffin v. U.S. (1895). Article 11, sec. 1, of the Universal
Declaration of Human Rights (United Nations 1948), says
Everyone charged with a penal offence has the right to be presumed inno-
cent until proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defence.
Elements of the Constitution that allegedly imply this presumption include

the Due Process clauses of the 5th and 14th Amendment, and the general
tenor of the 6th Amendment. Whether this implication holds today is a
matter of debate (Baradaran 2011).
T/F. The Constitution guarantees a defendant trial by a jury of one’s peers.
This is false.
20 79 25 22
Recall that the Magna Carta, provision #39, comes closer to requiring a
jury of one’s peers, than does the US Constitution. Recall too that the
Virginia Declaration of Rights (1776) says that a defendant in a criminal
trial is to be judged by his peers. But the closest the Constitution comes
is in requiring “an impartial jury of the State and jurisdiction wherein the
crime shall have been committed” (Amend. 6).
T/F/. The Chief Justice is Chief Justice of the United States, not just the
Supreme Court.
This is true. It follows from Article VI, par. 2 of the Constitution—the
“Supremacy Clause.”
142 C. DREISBACH
44 74 60 49
Background information: here is the relevant text:
This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all Treaties made, or which shall be made under the
Authority of the United States, shall be the supreme law of the Land; and
the Judges in each state shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding. (My emphasis)
While this allows the US Congress to require state judges to enforce fed-
eral law, the US Supreme Court has decided, in Printz v. The United States
(1997), that Congress may not order other state officials to enforce fed-
eral law. Justice John Paul Stevens (2014) describes—and laments—this
decision, as creating “The anti-commandeering rule—a rule that prohibits
Congress from requiring state officials to perform federal duties” (17).
Arguing that the federal government is in some cases more capable of
legislating for the good of all than individual states may be, Stevens (2014)
proposes a constitutional Amendment that adds “and other public offi-
cials” to the Supremacy clause (29).
T/F. Vacancies in the House can be filled by the governor.
This is false. According to Article 1, sec. 1, vacancies in the House can
be filled only by special election.
24 70 34 27
Note that the Constitution allows governors to fill vacancies in the US

Senate.
Once inside the USA both legal and illegal immigrants have a right to due
process
This is true, according to the Supreme Court decision in Zadrydas v.

Davis (2001).
49 60 82 49
Background information: Amendment V says in part
No person shall be … deprived of life, liberty, or property, without due process

of law… (My emphases)
Amendment 14 says in part
nor shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protec-
tion of the laws. (My emphases)
In neither case does the Constitution limit the right of due process to
a select group of people, such as citizens and non-citizens who are in the
US legally. Both Amendments include all persons under US jurisdiction
(Cole 2003).
Category II: Internal History

The category of internal history asks questions about history in which
the Constitution is at the center of the answer. It is helpful to divide this
history into pre-ratification, for example, Congress proposing one of 12
initial Amendments that was not ratified until 1992; and post-ratification,
for example, the ratification of the 27th Amendment thanks to the per-
sistence of a student whose initial effort earned him a course grade of C.
Pre-ratification
Example 16 (Easy):
T/F. Thomas Jefferson signed the Constitution.
This is false.
144 C. DREISBACH
40 78 51 44
Background information: Thomas Jefferson was the US Minister to

France during the Constitutional Convention. He corresponded with fel-
low statesmen and convention delegates about the proceedings during
and after the convention. In a letter to John Adams7, Jefferson (1787a)
referred to the delegates as “an assembly of demi-gods.” John Adams was
the US Minister to England at the time, so he too missed the convention.
In a letter to James Madison, Jefferson (1787b) objected to the absence of
a bill of rights. He would write many letters on these subjects during the
ratification process, but he was not directly involved in the writing of the
Bill of Rights either (Bloom 1986).
T/F. Ben Franklin signed both the Declaration of Independence and the
Constitution.
This is true.
56 79 71 62
Background information: Ben Franklin signed four documents of espe-

cially historical importance to the USA: the Declaration of Independence
(1776), the Franco-American Alliance (1778), the Treaty of Paris (1783),
and The US Constitution (1787) (Benton 2013).
At the Constitutional Convention, 81-year old Franklin was a mem-
ber of a small minority speaking out against slavery (Schmoop Editorial
Team 2008). As noted above, he also spoke out against paying legislators.
On June 28, 1787, he gave a speech proposing that each session at the
convention begin with a prayer (Franklin 1787a). On the last day of the
Convention, September 17, 1787, Franklin (1787b) was asked to give a
speech. Too weak to read it himself, he asked a fellow Pennsylvania del-
egate, James Wilson, to read it. It is worth reading in its entirety:
Mr. President
I confess that there are several parts of this constitution which I do not
at present approve, but I am not sure I shall never approve them: For hav-
ing lived long, I have experienced many instances of being obliged by better
information, or fuller consideration, to change opinions even on important
subjects, which I once thought right, but found to be otherwise. It is there-
fore that the older I grow, the more apt I am to doubt my own judgment,
and to pay more respect to the judgment of others. Most men indeed as well
as most sects in Religion, think themselves in possession of all truth, and
that wherever others differ from them it is so far error. Steele a Protestant in
a Dedication tells the Pope that the only difference between our Churches
in their opinions of the certainty of their doctrines is, the Church of Rome
is infallible and the Church of England is never in the wrong. But though
many private persons think almost as highly of their own infallibility as of
that of their sect, few express it so naturally as a certain French lady, who
in a dispute with her sister, said “I don’t know how it happens, Sister but I
meet with no body but myself, that’s always in the right — Il n’y a que moi
qui a toujours raison.”
In these sentiments, Sir, I agree to this Constitution with all its faults,
if they are such; because I think a general Government necessary for us,
and there is no form of Government but what may be a blessing to the
people if well administered, and believe farther that this is likely to be well
administered for a course of years, and can only end in Despotism, as other
forms have done before it, when the people shall become so corrupted as
to need despotic Government, being incapable of any other. I doubt too
whether any other Convention we can obtain, may be able to make a bet-
ter Constitution. For when you assemble a number of men to have the
advantage of their joint wisdom, you inevitably assemble with those men, all
their prejudices, their passions, their errors of opinion, their local interests,
and their selfish views. From such an assembly can a perfect production be
expected? It therefore astonishes me, Sir, to find this system approaching
so near to perfection as it does; and I think it will astonish our enemies,
who are waiting with confidence to hear that our councils are confounded
like those of the Builders of Babel; and that our States are on the point of
separation, only to meet hereafter for the purpose of cutting one another’s
throats. Thus I consent, Sir, to this Constitution because I expect no better,
and because I am not sure, that it is not the best. The opinions I have had
of its errors, I sacrifice to the public good. I have never whispered a syllable
of them abroad. Within these walls they were born, and here they shall die.
If every one of us in returning to our Constituents were to report the objec-
tions he has had to it, and endeavor to gain partizans in support of them, we
might prevent its being generally received, and thereby lose all the salutary
146 C. DREISBACH
effects & great advantages resulting naturally in our favor among foreign
Nations as well as among ourselves, from our real or apparent unanimity.
Much of the strength & efficiency of any Government in procuring and
securing happiness to the people, depends, on opinion, on the general opin-
ion of the goodness of the Government, as well as of the wisdom and integ-
rity of its Governors. I hope therefore that for our own sakes as a part of the
people, and for the sake of posterity, we shall act heartily and unanimously in
recommending this Constitution (if approved by Congress & confirmed by
the Conventions) wherever our influence may extend, and turn our future
thoughts & endeavors to the means of having it well administered.
Why does Article I recognize each slave as only 3/5 of a person?
(a) Because slaves were denied citizenship.

(b) Because slaves were ineligible to vote.
(c) As a compromise between Massachusetts’ call to treat slaves as a whole
people and North Carolina’s call to treat slaves solely as property.
(d) Because if slaves were treated solely as property, then the slave states would
have insufficient representation in the House of Representatives.
The correct answer is d.
30 59 51 33
Background information: the Three-Fifths Compromise is found in

Article 1, sec. 2, par. 3 of the Constitution:
Representatives and direct Taxes shall be apportioned among the several

States which may be included within this Union, according to their respec-
tive Numbers, which shall be determined by adding to the whole Number
of free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons.
The Constitution permitted states to send one representative to congress

for every 30,000 people represented. Also, the Constitution permitted
the federal government to tax states only according to their population.
If slaves were counted as property and not as persons, this would severely
limit the number of representatives of the slave-holding states and the
number of electors those states would have in the presidential election.
Treating slaves solely as property would also cost the federal government
a lot of tax revenue.
For purposes of representation, the slave states were happy to count
slaves fully as persons. Many northerners felt it was wrong to count slaves
as persons, since they were unable to vote. The Three-Fifths Compromise,
at James Madison’s urging, was a point at which all could agree, after con-
sidering 0 %, 100 %, 50 % (Benjamin Harris of Virginia), and 75 % (several
New Englanders) (Jensen 2005; Wills 2003, 51–53).
Alexander Hamilton (1788b) challenged the morality of this compro-
mise in a post-convention speech:
Much has been said of the impropriety of representing men who have no
will of their own…. They are men, though degraded to the condition of
slavery. They are persons known to the municipal laws of the states which
they inhabit, as well as to the laws of nature. But representation and taxa-
tion go together…. Would it be just to impose a singular burden, without
conferring some adequate advantage?
Also James Madison (1788c) writing as Publius in Federalist 54 offered

insight into the pragmatic struggle this issue caused:
In being compelled to labor, not for himself, but for a master; in being
vendible by one master to another master; and in being subject at all times
to be restrained in his liberty and chastised in his body, by the capricious will
of another, the slave may appear to be degraded from the human rank, and
classed with those irrational animals which fall under the legal denomina-
tion of property. In being protected, on the other hand, in his life and in his
limbs, against the violence of all others, even the master of his labor and his
liberty; and in being punishable himself for all violence committed against
others, the slave is no less evidently regarded by the law as a member of the
society, not as a part of the irrational creation; as a moral person, not as a
mere article of property.
T/F. Baptists were a leading voice in the separation of church and state dur-
ing the drafting of the Constitution.
148 C. DREISBACH
This is true.
41 57 72 46
Background information: during the Constitutional Convention and

the process of ratification, religious leaders led the fight against mixing
government with religion. This resistance is captured clearly in a letter to
James Madison from Baptist preacher John Leland (1788):
Sir
According to your Request, I have sent you my objections to the Federal
Constitution, which are as follows:
1st. There is no Bill of Rights, whenever a Number of men enter into a
state of Society, a Number of individual Rights must be given up to Society,
but there should be a memorial of those not surrendered, otherwise every
natural & domestic Right becomes alienable, which raises Tyranny at once,
and this is as necessary in one form of Government as in another.
2nd. There is a Contradiction in the Constitution, we are first inform’d
that all Legislative Powers therein granted shall be Vested in a Congress
composed of two houses, and yet afterwards all the power that lies between
a majority and two thirds, which is one Sixth part, is taken from these two
Houses, and given to one man, who is not only chosen two Removes from
the people, but also the head of the executive Department.
3rd. The House of Representatives is the only free, direct Representation
of the body of the people, and yet in Treaties which are to be some of the
Supreme Laws of the Land, this House has no voice.
4th. The Time place and Manner of chusing the members of the Lower
house is intirely at the Mercy of Congress, if they Appoint Pipin or Japan, or
their ten Miles Square for the place, no man can help it. How can Congress
guarantee to each State a Republican form of government, when every prin-
ciple of Republicanism is sapped.
5th. The Senators are chosen for Six years, and when they are once
Chosen, they are impeachable to nun but themselves, No Counterprize is
left in the hands of the People, or even in Legislative Bodys to check them,
Vote as they will, there they set, paying themselves at Pleasure.
6th. I utterly oppose any Division in a Legislative Body, the more Houses,
the more parties, the more they are Divided, the more the Wisdom is Scattered,
sometimes one house may prevent the error of another and the same stands
true of twenty Houses. But the question is, whether they do more good than
harm, the Business is certainly thereby retarded and the Experience inhanced.
7th. We are not informed whether Votes in all cases in the Lower house
are to be by Members or by States,—I Question whether a man could
find out the Riddle by plowing, with Sampsons Heiffers, if each Member
is not to have a Vote, who are they to be chosen according to Numbers
of Inhabitants, and why should Virginia be at ten times the Expense of
Delaware for the same Powers, if the Votes are always to be by States, why
is it not Expressed as in the choice of a President, in certain cases, If each
Member is to have a Vote Why is it Expressed concerning Senators, and not
concerning Representatives, this blank appears to be designed, to encourage
the Small States with hopes of Equality, and the Large States with hopes of
Superiority.
8ly. We have no assurance that the Liberty of the press will be allowed
under this Constitution.
9ly. We have always been taught that it was dangerous mixing the
Legislative and Executive Powers together in the same body of People, but
in this Constitution we are taught better, or worse.
10ly. What is clearest of all—Religious Liberty, is not sufficiently secured,
No Religious test is Required as a qualification to fill any office under
the United States, but if a Majority of Congress with the President favor
one System more then another, they may oblige all others to pay to the
support of their System as much as they please, and if Oppression does not
ensue, it will be owing to the Mildness of Administration and not to any
Constitutional defence, and of the Manners of People are so far Corrupted,
that they cannot live by Republican principles, it is Very Dangerous leaving
Religious Liberty at their Mercy.
In a letter to the Danbury Baptist Association, January 1, 1802, Thomas

Jefferson (1802) reaffirmed the commitment to keeping government and
religion separate.
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a

committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem and approbation which you are
so good as to express towards me, on behalf of the Danbury Baptist asso-
ciation, give me the highest satisfaction. My duties dictate a faithful and
zealous pursuit of the interests of my constituents, & in proportion as they
are persuaded of my fidelity to those duties, the discharge of them becomes
more and more pleasing.
Believing with you that religion is a matter which lies solely between Man
& his God, that he owes account to none other for his faith or his worship,
150 C. DREISBACH
that the legitimate powers of government reach actions only, & not opin-
ions, I contemplate with sovereign reverence that act of the whole American
people which declared that their legislature should “make no law respecting
an establishment of religion, or prohibiting the free exercise thereof,” thus
building a wall of separation between Church & State. Adhering to this
expression of the supreme will of the nation in behalf of the rights of con-
science, I shall see with sincere satisfaction the progress of those sentiments
which tend to restore to man all his natural rights, convinced he has no
natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the com-
mon father and creator of man, and tender you for yourselves & your reli-
gious association, assurances of my high respect & esteem.
Th Jefferson
Jan. 1.1802
In discussing, Example 3, regarding the Treaty with the Bey of Tripoli, we

noted the ongoing debate about whether America is a Christian nation.
The Treaty says no, but this has not settled the debate. That there was con-
scious effort to keep religion out of the Constitution and, concomitantly,
to keep the government out of religion, adds another premise to the argu-
ment that America is not a Christian nation—at least not constitutionally.
Post-ratification
T/F. The 12th Amendment was prompted by the development of political
parties.
This is true.
42 55 76 47
Background information: here is paragraph 1 of the 12th Amendment,

ratified June 15, 1804
The Electors shall meet in their respective states, and vote by ballot for President
and Vice-President, one of whom, at least, shall not be an inhabitant of the
same state with themselves; they shall name in their ballots the person voted for
as President, and in distinct ballots the person voted for as Vice-President, and
they shall make distinct lists of all persons voted for as President, and all persons
voted for as Vice-President and of the number of votes for each, which lists
they shall sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the President of the Senate.
In Washington’s (1796) Farewell Address, which he published at the end

of his presidency, he pleaded with the nation not to split into parties, since
this would give factions too much political power and party members’ first
loyalty would be to the party rather than to the country.
But two parties already existed in effect: those who regarded the nation as
the fundamental political unit, to which the states were subordinate, and those
who regarded each state as the fundamental political unit whose interests the
nation was supposed to serve. The first group called itself the Federalist Party.
This was a strategic move, since people opposed to them were often referred
to as anti-federalists, rather than pro-anything. The second group, the party
of states’ rights, called itself the Democratic—Republican Party. At the time
of the 12th Amendment’s ratification, John Adams, was a central representa-
tive of the Federalist Party and Thomas Jefferson was the central representa-
tive of the Democratic—Republican Party.
The Constitution had not considered political parties when it set the
rules for presidential elections. Article II, sec. 1, cl. 3, required each elector
to vote for two people. If one person received a majority of the votes, that
person became president and the first runner up became Vice-President.
If there was a tie for the top spot or no one received a majority of the
votes, the House of Representatives was to select the President and Vice-
President. The election of 1800 demonstrated flaws in this system, given
the advent of the two parties.
In the 1800 election, Thomas Jefferson and Aaron Burr tied with 73
electors apiece; John Adams came in third with 65 electors (United States
National Archives 2016). Each party was expected to cast one vote less
for the Vice-President than the president, but the Democratic-Republican
party cast the same number of votes for both candidates. After a frustrat-
ing series of ballots in the House of Representatives, they chose Jefferson
on the 36th ballot. The 12th Amendment ensured that electors would cast
votes for two different offices, electing the President on one ballot and the
Vice-President on another.
T/F. Until the 14th Amendment, the Bill of Rights restricted national
government only.
152 C. DREISBACH
This is true, according to the Supreme Court decision in Barron v.

Baltimore (1833).
33 51 65 37
Background information: holding states to the scope and limits of the

Bill of Rights is known as incorporation. A nearly-full incorporation of the
Bill of Rights has come relatively lately in American history.
In the case of Barron v. Baltimore (1833), the US Supreme Court held
that the Bill of Rights did not apply to state governments. In the words
of Chief Justice John Marshall, these Amendments “contain no expres-
sion indicating an intention to apply them to the State governments. This
court cannot so apply them” (250).
On its face, the 14th Amendment appears to overturn this decision
by granting constitutional rights to everyone in the USA. But many
years later, courts decided otherwise. For example, in United States v.
Cruikshank (1875), the Supreme Court held that neither the 1st nor
the 2nd Amendment applied to state governments; they served only to
restrict the power of the national government. With the Court’s decision
in Gitlow v. New York (1925), which incorporated the freedom of speech
against state governments, courts began to incorporate more and more
of the Bill of Rights against state governments until by 2008, when the
Court incorporated the 2nd Amendment in District of Columbia v. Heller
(2008) and McDonald v. City of Chicago (2010), very few elements of the
Bill of Rights remain unincorporated.
Among unincorporated elements that remain are the right to indict-
ment by a grand jury (Hurtado v. California 1884); the right to a jury
of people from the state and jurisdiction in which the crime occurred
(Caudill v. Scott 1988; Cook v. Morrill 1986; Zicarelli v. Dietz 1980); the
right to a jury in civil cases (Minneapolis & St. Louis R. Co. v. Bombolis
1916; and Pearson v. Yewdall 1877); and the right against excessive fines
(McDonald v. City of Chicago 2010, note 13).
Here is another question that I consider to be of medium difficulty:
Which of the following amendments is the most cited in modern litigation?
(a) 1
(b) 5
(c) 9
(d) 14
The answer is d: the 14th Amendment (Ragone 2004, 32).
13 53 25 14
Background information: one reason for the 14th Amendment’s

(2015) being cited so often is because of the number of cases that involve
discrimination on the basis of race, gender, religion, and sexual orienta-
tion. Recall that by the time John Adams was president there were two
parties: the Federalists, who favored a strong national government, and
the Democratic-Republicans, who favored states’ rights. The rift between
these two parties has remained to the present, although the names of the
parties have changed over time. When the 14th Amendment was rati-
fied, July 9, 1868, the opposing parties were the Republicans and the
Democrats, although each looked quite different from its counterpart
today (Evolution of American political parties 2016). The Republicans,
the party of Abraham Lincoln, favored a strong union; the democrats, the
party of Andrew Johnson, favored the cause of the southern states. The
point for our purposes is that with the 14th Amendment, not to mention
the outcome of the Civil War, the balance in power and official national
ideology, switched from the states’ rights proponents to proponents of a
strong national government.
Example 23 (Difficult)
T/F. Thirty-three Amendments have received congressional approval.
This is true. Six Amendments that Congress has approved have never
been ratified.
45 63 71 50
Background information: to date, 27 Amendments have been rati-

fied and added to the Constitution. Congress has approved six other
154 C. DREISBACH
Amendments that the states have not ratified (Mount 2011). The first was
one of the 12 proposed Amendments in 1789, ten of which became the
Bill of rights:
After the first enumeration required by the first article of the Constitution,
there shall be one Representative for every thirty thousand, until the num-
ber shall amount to one hundred, after which the proportion shall be
so regulated by Congress, that there shall be not less than one hundred
Representatives, nor less than one Representative for every forty thousand
persons, until the number of Representatives shall amount to two hundred;
after which the proportion shall be so regulated by Congress, that there
shall not be less than two hundred Representatives, nor more than one
Representative for every fifty thousand persons.
In other words, if the House membership were to hit 100, the number
could not go below 100 again. Similarly with 200. Since there are 435
members today, this Amendment is beside the point, but since it had no
expiration date, it is still eligible for ratification.
The 11the Congress submitted the following Amendment in 1810:
If any citizen of the United States shall accept, claim, receive or retain any
title of nobility or honour, or shall, without the consent of Congress, accept
and retain any present, pension, office or emolument of any kind whatever,
from any emperor, king, prince or foreign power, such person shall cease to
be a citizen of the United States, and shall be incapable of holding any office
of trust or profit under them, or either of them.
Twelve of 18 states had ratified the Amendment by 1812. Fourteen states

would have been necessary to ratify it (Silversmith 1998, 577). Since the
Amendment has no expiration date it could still be ratified, but there has
been no state response since 1812.
In 1861 Ohio Representative Thomas Corwin proposed, and Congress
approved of “The Slavery Amendment”:
No amendment shall be made to the Constitution which will authorize or

give to Congress the power to abolish or interfere, within any State, with
the domestic institutions thereof, including that of persons held to labor or
service by the laws of said State.
The hope was to keep the southern states from seceding, but the
Amendment got little momentum as only two states, Ohio, and Maryland,
ratified it: Ohio, on May 13, 1861, and Maryland, on January 10, 1862
(Porter 2012, 122; Holzer 2008, 429). Ohio rescinded its ratification on
March 31, 1864, and Maryland rescinded its ratification on April 7, 2014.
Since the Amendment has no expiration date, it could still be ratified.
Congress approved the Child Labor Amendment in 1926:
Section 1. The Congress shall have power to limit, regulate, and prohibit the
labor of persons under eighteen years of age.
Section 2. The power of the several States is unimpaired by this article
except that the operation of State laws shall be suspended to the extent nec-
essary to give effect to legislation enacted by the Congress.
Twenty-eight states had ratified this Amendment by 1937, and no states

have ratified it since. Since the Amendment has no expiration date, it could
still be ratified, which requires ten more states to ratify it (Mount 2011).
The Equal Rights Amendment was first introduced in Congress in
1923 and every year after until 1972, when Congress approved 1979 as
the deadline for state ratification (Equal rights amendment 1972).
Section 1. Equality of rights under the law shall not be denied or abridged by
the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legis-
lation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of
ratification.
When it failed to pass by the deadline, Congress extended it to 1982. By

this deadline 35 states had ratified the Amendment, which was three short
of the minimum number to put it in the Constitution. Congress has not
extended the deadline since.
In 1976, Congress approved the Washington D.C. Voting Rights
Amendment:
Section 1. For purposes of representation in the Congress, election of the

President and Vice President, and article V of this Constitution, the District
constituting the seat of government of the United States shall be treated as
though it were a State.
Section 2. The exercise of the rights and powers conferred under this
article shall be by the people of the District constituting the seat of govern-
ment, and as shall be provided by the Congress.
156 C. DREISBACH
Section 3. The twenty-third article of amendment to the Constitution of

the United States is hereby repealed.
Section 4. This article shall be inoperative, unless it shall have been rati-
fied as an amendment to the Constitution by the legislatures of three-fourths
of the several States within seven years from the date of its submission.
This Amendment called for D.C. to be represented as if it were a state. Its

1985 deadline came and went with not enough states ratifying it. Efforts
to reinstate the Amendment continue (Leadership Conference 2016).
T/F. The 19th Amendment is informally referred to as the “Declaration of
Sentiments.”
This is false.
17 52 33 19
Background information: the 19th Amendment and the Declaration of

Sentiments are both about women’s rights, but they are 72 years apart.
The 19th Amendment, recognizing the constitutional right of women to
vote, was ratified in 1920. The Declaration of Sentiments was signed by
68 women and 32 men in 1848, at America’s first women’s rights con-
vention, held in Seneca Falls, New York. The Declaration of Sentiments
resembles the Declaration of Independence but includes women and men
specifically, as is evident from its opening lines:
When, in the course of human events, it becomes necessary for one portion
of the family of man to assume among the people of the earth a position
different from that which they have hitherto occupied, but one to which
the laws of nature and of nature’s God entitle them, a decent respect to the
opinions of mankind requires that they should declare the causes that impel
them to such a course.
We hold these truths to be self-evident: that all men and women are cre-
ated equal; that they are endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the pursuit of happiness; that
to secure these rights governments are instituted, deriving their just powers
from the consent of the governed. … (cited in Gordon, 97)
Among its signers were Elizabeth Cady Stanton and Lucretia Mott,
two of the more famous leaders in America’s women’s rights movement.

External themes may be distinguished according to whether they are
directly relevant or indirectly relevant to the Constitution. In the introduc-
tion to this chapter, the debate over who should pay US Representatives
and Senators is directly relevant to the Constitution, while the relevance of
the corruption of British Parliament when the MPs did not receive pay is a
subject that is only indirectly relevant to the US Constitution.
Directly Relevant to the Constitution

All exam questions about external themes that are directly relevant to the
Constitution are either “medium” or “difficult.”
T/F. The Constitution’s preamble cannot be the basis of a lawsuit.
45 54 83 50
Background information: the US Supreme Court stated this in Jacobson

v. Massachusetts (1905). Henning Jacobson, a Massachusetts resident,
refused to obey the state’s law requiring smallpox vaccinations. Among
his arguments was that the preamble to the US Constitution guarantees
individual liberty and the Massachusetts law violates this right. The US
Supreme Court disagreed. Justice John Marshall Harlan, delivering the
decision of the Court, opened with these words:
We pass without extended discussion the suggestion that the particular sec-
tion of the statute of Massachusetts now in question (§ 137, c. 75) is in
derogation of rights secured by the Preamble of the Constitution of the
United States. Although that Preamble indicates the general purposes for
which the people ordained and established the Constitution, it has never
been regarded as the source of any substantive power conferred on the
Government of the United States or on any of its Departments. Such pow-
ers embrace only those expressly granted in the body of the Constitution
158 C. DREISBACH
and such as may be implied from those so granted. Although, therefore,

one of the declared objects of the Constitution was to secure the blessings
of liberty to all under the sovereign jurisdiction and authority of the United
States, no power can be exerted to that end by the United States unless,
apart from the Preamble, it be found in some express delegation of power
or in some power to be properly implied there from.
To what does the term “State Action” apply?
(a) A state’s right to nullify federal legislation on constitutional grounds.

(b) A state’s duty to respond to a federal subpoena.
(c) A state’s right to hear a criminal case if the crime occurred solely within
that state.
(d) The requirement that government must be involved for the Constitution
or Bill of Rights to apply.
The correct answer is d.
17 61 28 19
With one exception, only a government entity in the USA can violate
one’s constitutional liberties. The exception is the Thirteenth
Amendment, which bans slavery by anyone (Dunn 2009).
T/F. Marbury v. Madison establishes that “the federal judiciary is supreme
in the exposition of the law of the Constitution.”
This is false.
12 52 23 13
Background information: this is a quote from Cooper v. Aaron (1958),

a case about school desegregation in Arkansas, in which all nine justices
wrote the decision together. In it, they note that Article VI makes the
Constitution the “supreme law of the land.” They acknowledge Chief
Justice’s Marshall’s claim in Marbury v. Madison (1803) that “It is emphat-

ically the province and duty of the judicial department to say what the law
is.” Then they add:
This decision declared the basic principle that the federal judiciary is supreme
in the exposition of the law of the Constitution, and that principle has ever
since been respected by this Court and the Country as a permanent and
indispensable feature of our constitutional system.
This decision, often referred to as “judicial activism” or “legislating

from the bench,” has its critics. One notable critic is Edwin Meese III
(1987), US Attorney General under Pres. Ronald Regan. In an essay
addressing this issue, Meese said of the decision in Cooper v. Aaron:
In this case, in dictum, the Court characterized one of its constitutional

decisions as nothing less than “the supreme law of the land.” Obviously
constitutional decisions are binding on the parties to a case; but the impli-
cation of the dictum that everyone should accept constitutional decisions
uncritically, that they are judgments from which there is no appeal, was
astonishing; the language recalled what Stephen Douglas said about Dred
Scott. In one fell swoop, the Court seemed to reduce the Constitution to
the status of ordinary constitutional law, and to equate the judge with the
lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that
the Constitution is “What the judges say it is.” The logic of the dictum in
Cooper v. Aaron was, and is, at war with the Constitution, at war with the
basic principles of democratic government, and at war with the very mean-
ing of the rule of law. (987)
T/F. State laws banning the teaching of evolution are unconstitutional.
This is true.
35 53 66 39
Background information: this was the Supreme Court’s decision in

Epperson v. Arkansas (1968), which overturned an Arkansas statute pro-
hibiting the teaching of evolution in public schools. The Supreme Court
160 C. DREISBACH
decision was unanimous, with seven justices arguing on the grounds that
the Arkansas statute violated the First Amendment’s Establishment Clause
because the statute was based solely on Christian Fundamentalist prin-
ciples. The other two justices argued that the statute violated the 14th
Amendment, for being too vague, and that the statute violated the instruc-
tors’ right to free speech.
Some states responded by legally requiring that public schools teach
creationism alongside evolution, but the Court, 7–2, ruled this unconsti-
tutional in Edwards v. Aguillard (1987). In this decision, the Court found
that a Louisiana law requiring the teaching of creationism in public schools
was based on a specific religion. Justice Scalia and Chief Justice Rehnquist
dissented on the ground that the Louisiana legislature had claimed its
purposes were secular, not religious, and the US Supreme Court had no
evidence to the contrary.
Which economic system does the Constitution support?
(a) Free market capitalism

(b) Mercantile capitalism
(c) Socialism
(d) None of the above.
The answer is d: none of the above.
20 44 45 22
Background information: while it is reasonable to hold that the

Constitution is compatible with capitalism—that is the private ownership
of the means of production– in some form, the Constitution also gives
the government a lot of power to regulate the market place, as is evident
from the Commerce Clause. The Commerce Clause refers to Article 1,
sec. 8, cl. 3 of the US Constitution, which gives Congress the power “to
regulate commerce with foreign nations, and among the several states,
and with the Indian tribes.” To the extent that the USA government reg-
ulates the market place and from time to time has acted to protect either
the corporations or the consumers, it would be reasonable to regard the
US economic system as some form of state capitalism—i.e., generally

capitalist, but with direct and indirect state control. In any event, the
Constitution says nothing specifically about one economic system over
another, except to the extent that in its original form, it protects the slave
economy.
Indirectly Relevant to the Constitution
T/F. The primary conclusion of the Federalist papers is that New York should
ratify the Constitution.
This is true.
29 55 53 32
Background information: Chap. 2 discusses the Federalist papers at

length. Here is some additional information. Soon after the Federation
Congress sent the Constitution to the states for ratification, in September
1787, critics began to publish their concerns and objections. Alexander
Hamilton decided to respond, setting as his main purpose convincing
New York to ratify, since New York was an opinion leader in politics.
Hamilton asked John Jay and James Madison to join in and among them,
they wrote a set of 85 editorials between October 1787 and August 1788.
Each editorial appeared under the heading “The Federalist” in one of
three New York journals –The Independent Journal, The New York Packet,
and The Daily Advertiser. And each editorial appeared under the pseud-
onym “Publius.” While there is some disagreement about which of the
papers each of the three authors wrote, there is general agreement that
John Jay wrote five, James Madison wrote 28, and Alexander Hamilton
wrote 52 (Federalist papers 2016).
Recall from Chap. 2 that the basic argument was (1) A federal sys-
tem is better than a confederate system (as laid out in the Articles of
Confederation) and (2) the federalist plan that the Constitution proposes
is the best plan available to the USA, therefore (3) New York should ratify
the Constitution.
In support of the first premise, Publius discusses government responsi-
bility in terms of the dangers facing the USA (papers 2–14) and the prob-
162 C. DREISBACH
lems with the present confederacy (15–22). Given the foreign dangers
(2–5) and the domestic dangers (6–10), Publius argues for the benefits
of a strong union (11–14). Next, he notes and expounds on two types
of power that the government needs to fulfill its responsibilities: defense
(23–29) and taxation (30–36). Finally, Publius discusses the drafting of
the Constitution (37–51), dividing the discussion into four parts: the con-
vention, including objections to it (37–38) and the republican form of
the plan (39–40); federal powers (41–44); state powers (45–46); and the
separation of powers (47–51).
In support of the second premise, Publius focuses on the structure of
the proposed government, with a discussion about the legislative branch
(52–66), the executive branch (67–77), and the judiciary (78–83). The
remaining papers tie up loose ends.
It isn’t clear whether the papers achieved their main purpose, since
the Constitution was ratified by nine states before New York ratified it.
It is clear, however, that the Federalist papers are an invaluable resource
for understanding much of the thinking that went into the Constitution,
especially, since the Constitution gives no arguments for its provisions,
with the possible exception of the 2nd Amendment, which predicates the
right to bear arms on the right to a militia.
T/F. A citizen may sue his or her state in federal court.
12 49 24 13
Background information: the 11th Amendment prohibits citizens of

one state suing another state in federal court. But it was not until 1890
that the US Supreme Court decided that citizens could not sue their own
state in federal court either. The decision came in the case of Hans v.
Louisiana (1890). In fact, under the principle of sovereign immunity, a
citizen cannot sue a state at all without the state’s consent.
T/F. Miranda warnings are not required when a suspect in jail confesses to
a police officer posing as an inmate.
This is true.
33 50 66 37
Background information: Miranda v. Arizona (1966) was a landmark

decision of the USA Supreme Court. In a 5–4 majority, the Court held that
both inculpatory and exculpatory statements made in response to interro-

gation by a defendant in police custody will be admissible at trial only if
the prosecution can show that the defendant was informed of the right to
consult with an attorney before and during questioning and of the right
against self-incrimination before police questioning, and that the defendant
not only understood these rights, but voluntarily waived them.
But in Illinois v. Perkins (1990) the court found that Miranda warnings
are not required when a suspect in jail confesses to a police officer posing
as an inmate, “since the essential ingredients of a ‘police dominated atmo-
sphere’ and compulsion are lacking.”
Justice Thurgood Marshall dissented, arguing that
The conditions that require the police to apprise a defendant of his constitu-
tional rights—custodial interrogation conducted by an agent of the police—
were present in this case. Because Lloyd Perkins received no Miranda
warnings before he was subjected to custodial interrogation, his confession
was not admissible.
Which of the following is a form of constitutional originalism?
(a) Textualism
(b) Intentionalism
(c) Strict Constructionsim
(d) All of the above.
The answer is d: all of the above.
20 35 57 22
164 C. DREISBACH
Background information (also see Chap. 2): even among the most
literate of constitutional scholars there is disagreement about how one
should interpret the Constitution. Two broad and opposed categories of
interpretation are originalism and non-originalism. Originalists believe
that the Constitution’s meaning was settled at its inception and interpret-
ers who invoke it as a premise in an argument or judicial decision, must
discern that meaning and be true to it. Any revision to the Constitution
must come through the Amendment process that Article V prescribes.
Non-originalists hold that the basic purposes of the Constitution, as its
Preamble describes, remain, but their meaning—and thus the meaning of
much of the Constitution’s contents—change over time.
Originalism starts from the premise that the framers’ intent came from
absolute and thus unchangeable values. While opportunities to realize
these values and opposition to these values may change with advances in
science, technology, social norms, and human understanding, the values
themselves—such as the presumption of the 4th Amendment that “A
man’s home is his castle”—remain inviolable.
There are several forms of originalism. Strict Constructionists hold that
the Constitution must be taken at face value, and it is up to modern inter-
preters to discern that value through the many layers of time, conflict, and
theory that have arisen since. Is capital punishment constitutional? It was
in 1787, although the 8th Amendment prohibits cruel and unusual pun-
ishment. New ways of killing people have emerged since 1787; which of
these, if any, would constitute cruel and unusual punishment as a means of
execution, given the original meaning of “cruel and unusual”?
Although an originalist, Justice Antonin Scalia (1997) insists that he is
not a strict constructionist:
I am not a strict constructionist, and no one ought to be … A text should

not be construed strictly, and it should not be construed leniently; it should
be construed reasonably, to contain all that it fairly means. ( 23)
Instead, Scalia claims to be a textualist. He believes that to be constitu-

tional any decision must comport with the text of the Constitution—and
any subsequent statute or court decision that followed the original text.
There is still room for interpretation of the text, Scalia agrees, but any
such interpretation must demonstrate that it is consistent with the origi-
nal meaning. For example, the 2nd Amendment confers the right to bear
arms. The number and types of weapons in 1787 were smaller than the
number and types today. Can one ban individual ownership of nuclear
weapons and still honor the 2nd Amendment? Scalia says yes. It is per-
missible to ban certain firearms and to prevent certain people, such as
convicted felons, from possessing firearms (District of Columbia v. Heller
2008).
Intentionalists hold that given the ambiguity of words even in 1787 it
is important to determine the intent behind the words. Justice Clarence
Thomas exemplifies this view, as is evident from his claims that “the
federal constitution is not meant to address all ills in our society” and the
Constitution is not meant “to prohibit everything that is intensely desir-
able” (Hudson v., McMillian 1992; Bennis v. Michigan 1996). For Thomas,
the law should confine itself to matters to which the Constitution limits
itself. If for example, the Constitution does not acknowledge a right to
privacy, then there is no constitutional right to privacy and judges should
not declare otherwise (Babcock 1992).
The basic point on which all originalists agree is that the court should
not create new rights or new laws—that is up to the legislature, which
should itself act within the confines of the Constitution (Theories of con-
stitutional interpretation 2016).
Non-originalists argue that the Constitution is a living document that
judges must interpret in the context of contemporary values and that the
framers intended the Constitution to be adaptable to change. Proponents
of non-originalism often speak in terms of a “living Constitution.” They
claim either that the practical realities of political life have changed dra-
matically since 1787 or that the framers intended for there to be constitu-
tional change over time (Strauss 2010).
Some refer to this view as judicial activism, since it seems to imply that
judges have the right, if not the duty, to legislate from the bench when
proper legislative channels fail to yield the desired result. Consider Brown v.
Board of Education (1954), for example, which overturned Plessy v. Ferguson
(1896) and its doctrine of “separate but equal.” The result was good for the
country, but the legislature should have taken the initiative, not leave it to the
court to do so. Moreover, some have accused even the most conservative of
justices of being judicial activists when it suits their purpose (Young 2002).
Recall from Chap. 2 that Justice Stephen Breyer (2005) embraces a type of
non-originalism that he calls “active liberty.” Breyer argues that citizens have
the right to participate in government and judges are in a position to advance
that right where the legislature and the executive branches have failed to
do so. Glossip v. Gross (2015) reveals clearly the disagreement between the
166 C. DREISBACH
Supreme Court’s originalists and its non-originalists. In a 5–4 decision the

Court decided that the use of midazolam in executions by lethal injection
did not violate the constitutional prohibition of cruel and unusual punish-
ment. Justice Alito, writing for the majority, claimed that the level of pain
that might accompany the execution did not rise to the level of “cruel and
unusual,” and since the Constitution permits capital punishment otherwise,
executions with this drug could continue. In a concurring opinion, Scalia
agreed. In a dissenting opinion, Breyer argued that by prevailing social and
legal standards, the death penalty is no longer acceptable in any form.
Category IV: External History

External history refers to historical data and events that are directly relevant
or indirectly relevant to the Constitution, but of which the Constitution
is not the central subject. As with internal history, it is useful to divide
this category into pre-ratification and post-ratification. In our opening
example, we identified corruption in England’s Parliament as the cause
for American concern about how to compensate US Representatives and
Senators—this was a pre-ratification concern. We also noted the suc-
cessful efforts of a college student to add the 27th Amendment to the
Constitution. This was post-ratification.
Pre-ratification
Example 34 (Easy):
The Federalist papers were written by
(a) John Jay, James Madison, and Alexander Hamilton

(b) James Madison, George Mason, and Ben Franklin
(c) Alexander Hamilton, James Ellis, and George Washington
(d) John Jay, John Adams, and Governeur Morris
The answer is a: Jay, Madison, and Hamilton.
23 52 44 26
Background information: see the discussion above, regarding Example

30.
Which of the following is not a reason that the Declaration of Independence
gives for declaring independence?
(a) King George “has waged cruel war against human nature itself, violat-
ing its most sacred rights of life and liberty in the persons of a distant
people who never offended him, captivating and carrying them into slav-
ery in another hemisphere, or to incur miserable death in their transpor-
tation hither.”
(b) King George “has called together legislative bodies at places unusual,
uncomfortable, and distant from the depository of their Public Records,
for the sole purpose of fatiguing them into compliance with his
measures.”
(c) King George “has made Judges dependent on his Will alone for the ten-
ure of their offices, and the amount and payment of their salaries.”
(d) King George “has excited domestic insurrections amongst us, and has
endeavoured to bring on the inhabitants of our frontiers, the merciless
Indian Savages whose known rule of warfare, is an undistinguished
destruction of all ages, sexes and conditions.”
The answer is a.
18 56 32 20
Background information: Thomas Jefferson included this charge in

his original draft of the Declaration, but Congress struck it (Boyd 1950,
243–247). Note that acknowledging this might lead to a discussion about
Jefferson’s remarkable ambivalence concerning slavery. Even as he spoke
out against slavery and favored laws abolishing the importation of slaves
and prohibiting slaves in the northwest territories, he favored laws pro-
tecting slavery in the south and he kept slaves himself (Finkelman 1993).
What were the dates of Athenian democracy?
168 C. DREISBACH
(a) 1250-510 BCE

(b) 510-322 BCE
(c) 510 BCE-40 CE
(d) Athens has never been a democracy
The answer is b: 510-322 BCE.
25 54 46 28
Background information: this question reminds us that the Constitution

has important historical antecedents, of which the framers were aware.
Among these were Ancient Athens’ experiment with democracy (510-322
BCE) (Rhodes 2004). A more in-depth discussion might take participants
back to the pre-democracy attempts at creating a community of laws, with
Draco’s code (c. 621 BCE) and Solon’s code (c. 590 BCE). This discus-
sion could also provide a chance to distinguish the direct democracy of
Athens with the representative democracy of the Roman Republic (510-
BCE-40 CE?) and of the USA. In a direct democracy, every citizen partici-
pates—or is free to participate—in every government decision, including
legislation and adjudication. In a representative democracy, the people
select their decision makers and then step back from directly participating
in the decisions (Barber 2004).
This is one of many points in our discussion where one might object
that this knowledge is unnecessary to sworn officials’ doing their job well.
Granted, but the more one knows about what one has promised to pro-
tect, the more one should understand the richness of that promise. It is
for another work to investigate empirically how constitutional literacy cor-
relates to one’s success and satisfaction on the job.
Which of the following pre-constitutional documents recognizes the right to
redress grievances against the government?
(a) The Magna Carta

(b) The English Bill of Rights
(c) Neither a nor b.
(d) Both a and b.
The answer is d: both the Magna Carta and the English Bill of Rights
recognize this right.
20 49 41 22
Background information: here is the relevant section from The Magna

Carta (We the People Congress 2016.):
If we [King John], our chief justice, our officials, or any of our servants
offend in any respect against any man, or transgress any of the articles of
the peace or of this security, and the offence is made known to four of the
said twenty-five barons, they shall come to us—or in our absence from the
kingdom to the chief justice—to declare it and claim immediate redress.
If we, or in our absence abroad the chief justice, make no redress within
forty days, reckoning from the day on which the offence was declared to us
or to him, the four barons shall refer the matter to the rest of the twenty-five
barons, who may distrain [seize property for money owed] upon and assail
us in every way possible, with the support of the whole community of the
land, by seizing our castles, lands, possessions, or anything else saving only
our own person and those of the queen and our children, until they have
secured such redress as they havedetermined upon.
Having secured the redress, they may then resume their normal obedi-
ence to us. (§ 61).
The English Bill of Rights (1689) contains this clause: “And that for
redress of all grievances, and for the amending, strengthening and preserv-
ing of the laws, Parliaments ought to be held frequently.”
I anticipated this question as being difficult to answer because it
is reasonable to expect most people not to have read the Magna Carta
or the English Bill of Rights. That few students answered this question
correctly is no indication by itself of worrisome constitutional illiteracy.
Nevertheless, the more that stakeholders in the Constitution know about
its history, the better.
Which of the following pre-constitutional documents recognizes the right to
free speech?
170 C. DREISBACH
(a) The Magna Carta

(b) The English Bill of Rights
(c) The Massachusetts Bay Colony Body of Liberties
(d) All of the above.
The answer is c: The Massachusetts Bay Colony Body of Liberties.
13 51 37 14
Background information: the Magna Carta contains no reference to

free speech. The English Bill of Rights allows free speech in parliament:
“That the freedom of speech and debates or proceedings in Parliament
ought not to be impeached or questioned in any court or place out of
Parliament.” But this right goes no farther. Indeed, during this time
England had strict laws against sedition and seditious libel, verbal and
written speech, respectively, criticizing the government.
The Massachusetts Body of Liberties (1641) mentions freedom of
speech in its 12th and 75th paragraphs.
12. Every man whether Inhabitant or fforreiner, free or not free shall have
libertie to come to any publique Court, Councel, or Towne meeting, and
either by speech or writeing to move any lawfull, seasonable, and materiall
question, or to present any necessary motion, complaint, petition, Bill or
information, whereof that meeting hath proper cognizance, so it be done in
convenient time, due order, and respective manner.
75. It is and shall be the libertie of any member or members of any Court
Councell or Civill Assembly in cases of makeing or executing any order or law,
that properlie concerne religion, or any cause capitall, or warres, or Subscription
to any publique Articles or Remonstrance, in case they cannot in Judgement
and conscience consent to that way the Major vote or suffrage goes, to make
their contra Remonstrance or protestation in speech or writeing, and upon
request to have their dissent recorded in the Rolles of that Court. So it be done
Christianlie and respectively for the manner. And their dissent onely be entered
without the reasons thereof, for the avoiding of tediousnes.
In other words, people in Massachusetts, “whether inhabitant or [for-

eigner],” had the right to speak up in a legislative or judicial session; and
members of the court council or civil assembly had the right to express
their dissent orally or in writing. While there were restrictions, especially

concerning blasphemy, this enactment marked a big step forward in the
history of the right to free speech.
Post-ratification
Although the category is external history, post-ratification facts may be
either directly or indirectly relevant to the Constitution.
Directly relevant to the constitution
Which of the following court cases temporarily stopped all executions in the
United States?
(a) Furman v. GA 1972

(b) Gregg v. G, 1976
(c) Gilmore v. Utah 1976
(d) None of the above.
The answer is a: Furman v. GA 1972.
22 44 50 24
Background information: in Furman v. GA (1972), the Court decided

5–4 that the death penalty in the USA constituted cruel and unusual punish-
ment in violation of the 8th and 14th Amendments. Three justices argued
that the death penalty was unconstitutional in its current form and practice
because it was arbitrarily racially biased, especially against Black men. Justice
Brennan and Justice Marshall argued that the death penalty is unconstitu-
tional in all circumstances. The dissenting justices ignored the question of
bias and noted that the death penalty had always been constitutional and
that the 14th Amendment allows the taking of human life with due process
of law. The Court consolidated this case with two others: Jackson v. GA and
Branch v. TX, which involved capital punishment for rape.
The Court reversed itself, 7–2, in Gregg v. GA (1976), finding that the
law governing execution in Georgia was no long arbitrary or capricious.
The court let stand the unconstitutionality of capital punishment for rape.
172 C. DREISBACH
Which of the following decisions made it illegal for laws to discriminate
against women?
(a) Bradwell v. Illinois 1873

(b) Goesaert v. Cleary 1948
(c) Hoyt v. FL 1961
(d) Reed v. Reed 1971
The correct answer is d: Reed v. Reed 1971.
12 41 29 13
Background information: in Reed v. Reed (1971) the Court found

that Idaho’s probate code, which gave men preference over women as
estate administrators, violated the equal protection clause of the 14th
Amendment. This was the first time the Court had found that a state
law discriminating against women violated the Equal Protection Clause
(Breaking new ground 2016). In Bradwell v. Illinois (1873) the Court
upheld a state law forbidding women to become lawyers. Central to its
finding was that the privileges which the 14th Amendment refers to—
“No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States”—did not extend to pro-
fessions. Moreover, Justice Joseph P. Bradley held that “The laws of the
creator make being a wife and mother the paramount destiny and mission
of woman” (Monk 2003, 223). In Goesaert v. Cleary (1948) the Court
allowed a law limiting women bartenders on moral grounds: “Since bar-
tending by women may, in the allowable legislative judgment, give rise to
moral and social problems against which it may devise preventive mea-
sures.” In Hoyt v. Florida (1961), the Court allowed a law that exempted
women from jury duty, unless they volunteered, “on the ground that
women need to be home with their families” (Monk 2003, 224).
What was the crucial decision in Bush v. Gore, 2000?
(a) Article II of the Constitution requires all parties in a political election to

agree to a recount.
(b) Article II of the Constitution requires a disputed Presidential election to
be decided by the House of Representatives, not by a state supreme court.
(c) Lack of uniform recounting procedures in Florida violated the Equal
Protections clause of the 14th Amendment
(d) Lack of uniform recounting procedures in Florida violated the Due
Process clause of the 14th Amendment
The correct answer is c.
14 40 35 16
Background information: in the 2000 presidential election, the race

came down to Florida in which the vote was so close that news sources on
election night, November 7, could not agree on who had won Florida, Al
Gore or George W. Bush. The first full count, Wed. November 8, gave the
win to Bush by a margin of 1784 votes of over six million cast (Toobin
2008, 169). Under Florida law, so close a call required all Florida coun-
ties to do a recount. By the next day, Bush’s margin had dropped to 327
votes. The number of votes in most Florida counties was uncontroversial,
but Gore asked for a manual recount in four democratic-leaning counties–
Broward, Miami-Dade, Palm Beach, and Volusia—in which the count was
inconclusive. Bush sued in the federal court arguing that “Gore’s ‘selec-
tive’ recounts in only four counties violated the Equal Protection Clause
of the 14th Amendment, because they emphasized the votes of some
counties over others” (Toobin 2008, 171). The court disagreed, finding
that Florida law in this matter did not favor one candidate over the other,
and allowed the recount to continue. In response, Florida Secretary of
State, Katherine Harris, a Republican, announced that under Florida law,
she would certify the election seven days after the vote, November 14,
even if the recounts were not finished. She could have extended the dead-
line. Although she certified the vote, the Florida Supreme Court decided
on November 17 that the recount could continue and three days later
it extended the deadline to November 26, at which point Harris could
certify the election. As of November 17, the vote count stilled favored
Bush by a small margin, and if it were to end then, Bush would win. On
174 C. DREISBACH
November 21, Bush filed a petition for certiorari—judicial review by the

US Supreme Court. The petition included four possibilities: the Florida
court violated federal election laws; the court violated Article II of the
Constitution, which gives legislatures, not courts, the right to regulate
presidential elections; the recount violated the Equal Protection clause of
the 5th and 14th Amendment; and the recount violated the Due Process
clauses of the 5th and 14th Amendments (Toobin 2008, 176).
On November 24, the court granted the certiorari petition by a vote of
5–4 and heard the argument under the case title Bush v. Palm Beach County
Canvassing Board (2000). On December 4, 2000, the Court decided to
vacate the Florida Supreme Court’s decision to allow the recount to con-
tinue and asked the Florida Supreme court to explain its decision in the
light of Florida law and federal law concerning the appointment of elec-
tors. Before the court could answer, a local judge, N. Sanders Sauls, in
Tallahassee, ruled that the recount should stop, and Harris’s certification
of Bush’s victory should stand (Toobin 2008, 181, 184). On December
7, the Florida Supreme Court overruled Sauls’ decision and ordered the
recount to continue. Bush filed a new brief with the US Supreme Court
on December 8, under the heading Bush v. Gore. The Court immediately
granted a stay of the recount and ordered oral arguments for December 11.
On December 12, the Court found, 7–2, for Bush, on the ground
that the Florida Supreme Court’s plan for recounts violated the Equal
Protection Clause of the Constitution by limiting the vote count to certain
ballots and certain counties (Bush v. Gore 2000). The Court also concluded
5–4, that no remedy could be applied within statutorily-set time limits.
In dissent, Justice Stevens wrote:
Although we may never know with complete certainty the identity of the
winner of this year’s Presidential election, the identity of the loser is per-
fectly clear. It is the Nation’s confidence in the judge as an impartial guard-
ian of the rule of law.
Justice Souter agreed with Stevens’ dissent and added,
There is no justification for denying the State the opportunity to try to

count all disputed ballots now.
Soon after, news sources reported that Souter was so upset by what he saw
as a partisan decision, that he threatened to resign.
Justice Ginsberg agreed with her colleagues in dissent, adding,
In sum, the Court’s conclusion that a constitutionally adequate recount is

impractical is a prophecy the Court’s own judgment will not allow to be
tested. Such an untested prophecy should not decide the Presidency of the
United States
Where Stevens and Souter had closed with “I respectfully dissent,”

Ginsberg closed with “I dissent.” It is unclear whether Ginsberg dissented
with disdain.
Justice Breyer in dissent opened thus,
The Court was wrong to take this case. It was wrong to grant a stay. It
should now vacate that stay and permit the Florida Supreme Court to decide
whether the recount should resume.
The political implications of this case for the country are momentous. But
the federal legal questions presented, with one exception, are insubstantial.
He closed with “I respectfully dissent.”

In 2013, Justice Sandra Day O’Connor, a lead voice in favor of Bush
but now retired, said that it might have been better not to have taken the
case in the first place (Toobin 2013).
Indirectly relevant to the Constitution
Example 42 (Medium): Here is a question that I anticipated being of

medium difficulty:
T/F. The term “Founding Fathers” was first used by Warren G. Harding
in 1918.
This is true.
41 60 68 46
Background information: while one might imagine that this term has
been around for the better part of American history, it first appears on the
record on February 22, 1918. In a speech to the Sons and Daughters of
the Revolution, then Sen. Harding said, “It is good to meet and drink
at the fountains of wisdom inherited from the founding fathers of the
Republic” (cited in Monk 2003, 17).
176 C. DREISBACH
T/F. By 2000, only 4.3% of federal criminal charges ended in jury verdicts.
This is true (Monk 2003, 175).
29 45 64 32
Background information: by 2004, the figures were only slightly bet-

ter, with 95 % of defendants pleading guilty, 2 % being found guilty by
the jury, and 3 % being found guilty in bench trials (Bureau of Justice
Statistics 2016). In a compelling and controversial article law professor
John H. Langbein (1980), equates the plea agreement process with tor-
ture and argues that the Constitutional right to a trial by jury requires the
prosecution to provide such a trial. In other words, plea agreements are
unconstitutional.
SUMMARY
In previous chapters we have considered the nature, lack, and value of
constitutional literacy. In this chapter we have considered one approach
to assessing constitutional literacy. This approach involves a test to which
Chap. 3 also refers. Chapter 3 brings up the test as one way of offering
evidence of a pervasive lack of constitutional literacy among sworn law
enforcement professionals. In this chapter we let the same test serve as the
foundation of an assessment for constitutional literacy.
The test is divided into four principal categories: internal themes, inter-
nal history, external themes, and external history. Category I is divided
into three parts: distinguishing the Constitution from other documents,
requiring reading the Constitution only, and requiring extra thought
beyond a reading of the constitution, such as interpretation or research.
Category II is divided into pre-ratification and post-ratification. Category
III is divided into questions that are directly relevant to the Constitution
and questions that are indirectly relevant. And Category IV is divided into
pre-ratification and post-ratification, with the latter being further divided
into questions referring directly to the Constitution and questions refer-
ring indirectly to the Constitution.
Questions may be easy, of medium difficulty, or difficult, depend-
ing on how much knowledge is required beyond basic knowledge of
the Constitution’s anatomy. This chapter offers 43 examples, including

questions from each of the four categories, each of the sub-parts, and from
each level of difficulty. This chapter also includes scores from students
who have taken the test, along with background information to facilitate
discussion about each question, once students have taken the test and are
ready to go over the answers.
While this approach is offered as a useful place to start when thinking
about assessing constitutional literacy, there may be better ways to struc-
ture the test and better questions to include in the test, both in quality and
in quantity. Also, there is much work to do in determining how helpful the
test is in assessing and promoting constitutional literacy. Chapter 7 says
some more about this as it considers where the work of this book might
lead and what other relevant work may be going on or pending.
The next chapter considers ways of promoting and encouraging con-
stitutional literacy and returns to a modified form of the test outline to
suggest a proto-curriculum for advancing constitutional literacy through
education formally and informally.
REFERENCES
Babcock, Barbara. 1992. Judge Clarence Thomas’ views on the fundamental right
to privacy: A report to the United States Senate Judiciary committee. The Black
Scholar 22(1/2): 138–143.
Baradaran, Shima. 2011. Restoring the presumption of innocence. Ohio State Law
Journal 72(4): 723–776.
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CHAPTER 6
Improving Constitutional Literacy
INTRODUCTION: THE LIBERTY BILL ACT

In 1998, civics teacher Randy Wright and his students from Liberty
Middle School in Ashland, VA, set out to educate America and the world
about the US Constitution by having a condensed version of it placed on
the back of the US dollar bill (Kroll 2003).
They quickly gained the support of state and federal legislators, newspa-
pers, and civic groups, although it was not until 2001, that a Congressman,
Eric Cantor (R-VA) introduced the Liberty Bill Act to Congress. The Bill
did not pass, but Wright and his students persevered, taking their cause to
Capitol Hill every summer until June 12, 2009, when Cantor tried again.
HR 2854—The Liberty Bill Act (2009)—introduced in the House was
To require the Secretary of the Treasury to redesign $1 Federal Reserve

notes so as to incorporate the preamble to the Constitution of the United
States, a list describing the Articles of the Constitution, and a list describ-
ing the Amendments to the Constitution, on the reverse side of such notes.
Once Cantor introduced the bill, it was referred to the Committee on

Financial Services. Seven findings offer the premises of the argument for
the bill:
1. many Americans are unaware of the provisions of the Constitution of the

United States, one of the most remarkable and important documents in
world history;

DOI 10.1057/978-1-137-56799-4_6
184 C. DREISBACH
2. an abbreviated version of the Constitution, consisting of the preamble,

a list of the Articles, and a list of the Amendments, could easily be
placed on the reverse side of $1 Federal reserve notes;
3. the placement of an abbreviated version of the Constitution on $1
Federal Reserve notes would remind the American people of the his-
torical importance of the Constitution and its impact on their lives
today;
4. the preamble would remind Americans of the blessings of liberty;
5. the Articles would remind Americans of the framework of the United
States Government;
6. the Amendments would remind Americans of the historical changes to
this living document that forms the very core of the American experi-
ence; and
7. people throughout the world would also learn about the framework of
a republican government, the blessings of liberty, and the ideals of
human rights through the exchange of American currency.
The proposed design would incorporate the preamble to the

Constitution of the USA, a list describing the Articles of the Constitution,
and a list describing the Amendments to the Constitution.
Once again, the bill failed to pass, but as I learned in a phone call
with Randy Wright (December 11, 2015), a new project has emerged:
Teaching Tours (http://www.teachingtours.org/). This continues the
project of taking school-aged children to Washington, DC, exciting them
about history, government, communication skills, and other subjects, with
an eye toward helping the children articulate and pursue their dreams.
Given how timely and important the Liberty Bill project is, one hopes it
will find another congressional sponsor, even as Wright and his students
pursue other adventures.
There is no public indication of strong objections to the bill. Some
vending machine companies have expressed concern about having to
adjust their machines to read the new bill, and some people want to elimi-
nate the paper dollar bill altogether, but it is not evident that these objec-
tions have had an effect on Congress (Kroll 2003).
The Liberty Bill Act is appealing civically and aesthetically. Civically, as
section 2 of HR. 2854 notes, the benefits would be local, national, and
global. Locally and nationally, people would be reminded of the basic
contents of their Constitution when they held or passed a dollar bill. As we
have seen, there is much more to constitutional literacy than merely being
IMPROVING CONSTITUTIONAL LITERACY 185
able to cite its words or memorize its structure—there are also the mean-
ing and history behind the words and structure and the many possible
interpretations and consequences of those interpretations. But familiarity
with its basic content and structure is a good—and perhaps necessary—
place to start toward developing constitutional literacy.
Globally, the dollar is ubiquitous. With the passage of the Liberty Bill Act,
the dollar bill would inform “people throughout the world about the frame-
work of a republican government, the blessings of liberty, and the ideals of
human rights through the exchange of American currency” (§2, par. 7).
Aesthetically, the design as proposed would be eye-catching and con-
tinue the tradition of American currency’s intricate, historical, and infor-
mative imagery.
In any event, the Liberty Bill Act initiative serves well as an introduc-
tion to this chapter, which looks at some possible ways of promoting and,
one hopes, improving constitutional literacy.
PROMOTING AND IMPROVING CONSTITUTIONAL LITERACY:

SWORN AND NON-SWORN
In looking to promote and improve constitutional literacy, we have iden-
tified two general audiences or groups of stakeholders: sworn and non-
sworn. Among the sworn we may distinguish among those who complete
formal training or education before taking the oath, such as law enforce-
ment professionals and lawyers; those who take the oath at the beginning
of their professional training, such as the military; and those who are not
required to complete any educational program before taking the oath.
This third group includes, for example, elected officials and many civil ser-
vice personnel. This is not to deny that many civil service positions require
training, as with US Postal workers, for example, but this training may not
include anything about the Constitution (39 U.S.C.A. §1011).
Among the non-sworn are citizens and non-citizens. As Chap. 4 notes,
citizens for whom constitutional literacy is desirable include jurors; voters;
participants in public conversation on talk radio, in letters to the editor,
and on social media; consumers of social goods and services; any citizen
interacting with public servants; and students.
Non-citizens under US jurisdiction have a vested interested in consti-
tutional literacy as beneficiaries of US public goods and services; as people
who might have to navigate through some part of the US legal system;
and as participants in public conversation about political and social states
186 C. DREISBACH
of affairs in the USA. Moreover, any student of the USA, whether under its
jurisdiction or not, will benefit from constitutional literacy, given the cen-
tral role that the Constitution plays or should play in all things American.
Whether to sworn or non-sworn, the value of learning opportunities to
advance one’s constitutional literacy is of benefit to all stakeholders. Books
and courses abound on the Constitution, most of which should provide the
information and pedagogy necessary for improvement in constitutional lit-
eracy. But it will be useful to add to the collection of available resources a
modular outline—a proto-curriculum—that could be used in pieces or in its
totality, both in formal coursework and training and in informal education
and training. The framework for assessment that we considered in the previ-
ous chapter offers the basis for one such outline. We repeat it here having in
mind a foundation for future training and education where its function in the
previous chapter was primarily to evaluate learning that has already occurred
A PROTO-CURRICULUM: FOUR MODULES

For this chapter, think of the four parts of the test that Chap. 5 discusses
as four modules: internal themes, internal history, external themes, and
external history. Each module can stand alone although to add a mod-
ule is to show connections between or among modules. Also, in each
module, topics can range from easy, requiring little effort to comprehend
or little prior knowledge of related topics; through moderately difficult
(“medium”), requiring increased effort to comprehend and some prior
knowledge of the Constitution and related topics; to difficult, requiring a
high level of effort to comprehend and extensive prior knowledge of the
Constitution and related topics.
We leave for another discussion whether and how to draw a clear line
among these three levels of difficulty. The discussion of assessing consti-
tutional literacy in the previous chapter provides food for thought on this
topic, but developing a formal, well-defended distinction is beyond our
immediate purpose.
Module I: Internal Themes

Module I, Internal Themes, has three parts: requiring reading of the
Constitution only; distinguishing the Constitution from other texts; and
requiring extra thought beyond a reading of the Constitution, such as
interpretation, stipulation, or research.
Part 1: Requiring Reading the Constitution Only

Part 1, requiring only a reading of the Constitution with the possibility
of different levels of comprehension, divides into (a) a mere inventory of
the structure and parts of the Constitution, and (b) a closer look at key
elements of the Constitution’s structure and parts. In effect, this part is an
examination of the Constitution’s anatomy.
A Mere Inventory
The inventory has three main headings: the Preamble, the seven Articles,
and the twenty-seven Amendments. Under these come explicit or implicit
subheadings that lead into (b). Thus,
• The Preamble
– We the People
– A more perfect union
– Justice
– Domestic tranquility
– Common defense
– General welfare
– Blessings of liberty
• The Seven Articles
– I-III: The Three branches of government
– The Legislature
– The Executive branch
– The Judicial Branch
– Article IV: Relations among the States
– Article V: Constitutional Amendments
– Article VI: The Constitution as the supreme law of the land
– Article VII: Ratification
• The Twenty-seven Amendments
• Amendments 1–10 (1789): the Bill of Rights
• Amendments 11–12
– 11 (1798): Lawsuits limited against states; sovereign immunity
– 12 (1804): Election of the President and Vice President, given a
party-system
188 C. DREISBACH
• Amendments 13–15: The Civil War Amendments

– 13 (1865): Slavery illegal
– 14 (1868): Citizenship; equal protection; due process
– 15 (1870): Voting rights for Blacks
– 16 (1913): Direct income tax
– 17 (1913): Senators elected directly
– 18 (1919): Prohibition
– 19 (1920): Voting rights for women
– 20 (1933): Changes start and end dates of terms of office for
President, Vice President, and Congress
– 21 (1933): Repeal of Prohibition
– 22 (1951): Two-term limit for President
– 23 (1961): The District of Columbia gets electors
– 24 (1964): Poll tax cannot be a requirement for voting
– 25 (1967): Presidential succession
– 26 (1971): Voting rights for citizens as young as 18
• Amendment 27 (1992): Congress cannot give itself a raise during
the session in which it approves of a raise
A Closer Look at Key Elements of the Constitution’s Structures

and Parts
Having identified the structure and general parts of the Constitution, one
may move in for a closer look, identifying facts about the content of the
Constitution. Among the facts are general topics covered, key terms, and
what is not in the Constitution.
General topics covered

The bulleted list above identifies topics covered in a preliminary way. A
more detailed outline would include, for example, by general heading.
• The Seven Articles

– The number and topic(s) of each section within Articles I-IV.

There are no sections in Articles V-VII.
– Articles I-III: The composition of each branch of government;
the rights and responsibilities—or powers—within each branch of
government; the qualifications for the various offices within each
branch of government; term lengths and limits; means of adminis-
tering each branch and office; and the crime of treason (in Art. 3).
– Article IV: “Full faith and credit”; new states and territories; guar-
antee of a republican form of government.
– Article V: Two-thirds of Congress and three-fourths of the states
required to ratify an Amendment; prohibition of any anti-slavery
Amendment before 1808; prohibition of denying any state its two
US senators.
– Article VI: Debts and treaties; the oath of office.
– Article VII: Nine states needed to ratify.
• The Twenty-Seven Amendments: rights specifically guaranteed by
each Amendment; deadlines for ratification, in Amendments that
have such deadlines; Congress’s right to enforce the Amendment,
where such enforcement is included explicitly.
Key terms
This section looks at key constitutional terms and expressions that are
unusual or ambiguous. At this stage, the point is simply to identify them.
Part 3 of Module I discusses possible definitions and absences of definition.
Examples of ambiguous terms and expressions include
The specific aims that the Preamble names,
Article 1: “direct taxes”; “three-fifths of all other persons”; “power
of impeachment”; “President of the Senate”; “President pro tempore”;
“the power to try all impeachments”; “bills for raising revenue”; the pow-
ers enumerated in Article 1, section 8; “the migration or importation of
such persons…”; “habeas corpus”; “bill of attainder”; “ex post facto law”;
“capitation”; “title of nobility”; “letters of marque and reprisal”; “imposts
or duties”
Article II: “Electors”; “natural born citizen”; “Commander in Chief”;
“advice and consent of the Senate”; “power to fill up all vacancies”; “high
crimes and misdemeanors”
Article III: “good behavior”; “original jurisdiction”; “appellate juris-
diction”; “treason”
190 C. DREISBACH
Article IV: “Full faith and credit”; “privileges and immunities”; “no
person held to service or labor…” (the fugitive slave act); “a republican
form of government”;
Article V: “Amendment”; “equal suffrage in the Senate”
Article VI: “the supreme law of the land”; “oath or affirmation”
Article VII: “the conventions of nine states” (vs. the legislatures)
Amendment 1: “peaceably to assemble”
Amendment 2: “A well-regulated militia”; “the right of the people to
keep and bear arms”
Amendment 3: “Quartered”
Amendment 4: “Unreasonable searches and seizures”; “probable
cause”
Amendment 5: “Infamous crime”; “the same offence to be twice put
in jeopardy of life”; “a witness against himself”; “due process of law”;
“just compensation”
Amendment 6: “A speedy…trial”; “impartial jury”; “compulsory pro-
cess for obtaining witnesses”; “assistance of counsel”
Amendment 7: “the rules of common law”
Amendment 8: “Excessive bail”; “excessive fines”; “cruel and unusual
punishment”
Amendment 14: “Due process of law”; “equal protection of the laws”;
“the validity of the public debt”
Amendment 15: “On account of race, color, or previous condition of
servitude”
Amendment 16: “tax on incomes, from whatever source derived”;
“without apportionment among the several states”; “without regard to
any census or enumeration”
Amendment 18: “manufacture, sale, transportation, importation,
exportation”; “of intoxicating liquors”; “for beverage purposes” {Note:
nothing about consumption or use of such liquors for other purposes}
Amendment 19: “On account of sex”
Amendment 23: “But in no event more than the least populous State”
Amendment 24: “By reason of failure to pay any poll tax or other tax”
What is not in the Constitution

One can find many informative lists of topics that people have incorrectly
ascribed to the Constitution Here are examples of such topics, some of
which we have identified in previous chapters:
• Congressional Districts
• The Electoral College (no reference to a “college”)
• Executive Order
• Executive Privilege
• Freedom of Expression
• God
• Immigration
• Impeachment as removal from office
• Innocent until proven guilty
• “It’s a free country”
• Judicial Review
• Jury of Peers
• Marriage
• Martial Law
• No taxation without representation
• Number of Justices in the Supreme Court
• Paper Money
• Political Parties
• Primary Elections
• Qualifications for Judges
• The right to privacy
• The right to travel
• The separation of church and state
• The Separation of Powers Clause
• Slavery
Part 2: Distinguishing the Constitution from Other Texts

Since the focus of this module is on the Constitution itself, the purpose of
this part here is to see whether one can distinguish constitutional content
from the content of other documents, without necessarily being able to
name or identify those other documents. Some familiarity with these other
documents is more important under external themes and external history.
In choosing documents for comparison, one may distinguish between
American documents and non-American documents.
Among the American documents that one ought to be able to dis-
tinguish from the Constitution are, for example, the Declaration of
Independence, the Articles of Confederation, treaties, colonial compacts
and state constitutions, speeches, and court decisions.
192 C. DREISBACH
Among non-American documents, one might distinguish between

ancient legal documents, legal documents existing around the time of the
Constitution’s ratification, and more recent documents. Examples include
The Code of Hammurabi (c. 1754 BCE); Draco’s Law Code (7th cen-
tury BCE); the Twelve Tables of the Roman Republic (c. 449 BCE); The
Magna Carta (1215); The English Bill of Rights (1689); the Declaration
of the Rights of Man and of the Citizen (France, 1789); Constitutions
from other Countries; and the Universal Declaration of Human Rights
(1948).
Part 3: Requiring Extra Thought Beyond a Careful Reading

of the Constitution Itself
Sticking close to the Constitution, this part of the module considers pos-
sible definitions of some of the key terms and expressions, as noted above;
nicknames for parts of the Constitution; theories of constitutional inter-
pretation; and theoretical questions.
Nicknames
The most common sort of nickname for constitutional content refers to
a particular clause. For a comprehensive list, see S. Mount (2012). Here
are some examples:
The Advice and Consent Clause (Art. 2, sec. 2, cl. 2; Art. 3, sec. 2, cl. 1)
The Civil War Amendment: 13, 14, 15
The Commerce Clause (Art. 1, sec. 8, cl. 3)
The Copyright Clause (Art. 1, sec. 8, cl. 8)
The Diversity (of Citizenship) Clause (Art. 3, sec. 2)
The Double Jeopardy Clause (Amendment 5)
The 1808 Clause (Art. 1, sec. 9, cl. 1)
The Elastic Clause, or the Necessary and Proper Clause (Art. 1, sec. 8,
cl. 18)
The Establishment Clause (Amendment 5)
The Free Exercise Clause1 (Amendment 1)
The Fugitive Slave Clause (Art. 4, sec. 2, cl. 3)
The Full Faith and Credit Clause (Art. 5, sec. 1)
The Guarantee Clause (Art. 5, sec. 4)
The Indian Commerce Clause (Art. 1, sec. 8, cl. 3)
The Interstate Commerce Clause (Art. 1, sec. 8, cl. 3)
The Supremacy Clause (Art. 6, cl. 2)
The Three-fifths Clause (Art. 1, sec 2, cl. 3)
The Treaty Clause (Art. 2, sec. 2, cl. 2)

The War Clause (Art. 1, sec. 8, cl. 11)
Theories of Constitutional Interpretation

Chapter 5 discusses theories of constitutional interpretation in some detail.
This subject fits into the module at this point, because by now, assuming
the module is being followed in sequence, students will have encountered
ambiguous terms and phrases, policies that seem arbitrary, and provisions
that may pertain to concerns today. At the same time, students might won-
der what help is available in clearing up these ambiguities, explaining the
reason behind or value of those policies, and how precisely the provisions
pertain to today. Since the effort in this module focuses on the Constitution
itself, an example or two of judicial disagreement that represents differ-
ent theories of interpretation should suffice, with further discussion left to
other modules. Almost any Supreme Court case that was not decided unani-
mously contains examples of judicial disagreement, much of which reflects
differences in theories of interpretation. For example, Chap. 3 opens with
disagreement in Heller over the scope and limits of the 2nd Amendment.
Theoretical Questions
Among the theoretical questions that arise, without pointing to sources
outside the Constitution, are possible theories or presumptions behind cer-
tain terms, such as “liberty,” “cruel and unusual,” “speedy trial,” “exces-
sive bail”; possible reasons for certain policies, such as two-year terms for
representatives, six-year terms for senators, four-year terms for president,
and appointments “for life” of Supreme Court justices; and the significance
of what the framers put into the Constitution and what they left out. On
this latter point, note that the framers expressly omitted any religious test
for office, including any requirement that a constitutional oath of office be
taken with a hand on the Bible. Engaging these theoretical questions will
either point to other modules for future discussion or incorporate one or
more of those modules simultaneously, depending on how ready the con-
versation is for going into greater thematic or historical depth.
Module II: Internal History

The Convention was not called in an historical vacuum, nor were dis-
cussions and decisions at the Convention free of historical antecedents.
One of the many remarkable qualities of the delegates was their his-
194 C. DREISBACH
torical knowledge, even as they disagreed on the significance of that

history for their present purpose and on the conclusions to which that
history pointed.
The first division of this module, Module 2, is into pre-ratification and
post-ratification. Because the focus is internal, the history here is imme-
diately relevant to the signed draft of the Constitution on September 17,
1787. An example of what one might include here follows.
Pre-ratification
The two documents most directly antecedent to the Constitution were the
Declaration of Independence (1776) and the Articles of Confederation
(ratified in 1781). The Declaration of Independence separated us from
the British government but left us with no national government beyond
the Continental Congress, made up of delegates from the 13 colonies
(Rakove 1979). Many of the delegates to the first Continental Congress,
which met in 1774, were loyal to the Crown, but by July 2, 1776, the
second Continental Congress voted unanimously to declare America’s
independence from Britain. America had its first government beyond the
Congress, when it ratified the Articles of Confederation, on March 1,
1781. Congress continued to act as the national executive body, now call-
ing itself the Congress of the Confederation.
A significant historical bridge between the Articles of Confederation
and the Constitution was the Meeting of Commissioners to Remedy
the Defects of the Federal Government, which consisted of 12 delegates
from five states, meeting in Annapolis, Maryland in September 1786
(Baltz 1986).
The Articles of Confederation left each state generally autonomous.
There were no national means of collecting revenue or creating a standing
military; and states were imposing tariffs on each other, with no national
means of removing trade barriers among the states. At the conclusion of
the Annapolis Convention, the delegates—from Delaware, New Jersey,
New York, Pennsylvania, and Virginia—sent the report of their meeting
to Congress and the states, asking for the convention that would be held
in Philadelphia the following spring.
Meanwhile, Shays’ rebellion was in full force (Richards 2002).
Beginning on August 29, 1786, Daniel Shays, a Revolutionary War veteran
and Massachusetts farmer, led almost 4000 Massachusetts residents in a
rebellion against the state government, protesting severe policies to collect
debts and taxes. Federal officials put down the rebellion for the most part
by February 1787, with some flare ups until June 1787. The inability of
the Federal Government to prepare for and deal with such rebellions was
thought to be one of the reasons the Confederation Congress was eager to
revisit the Articles of Confederation and produce a national government
that was more effective in managing interstate commerce, collecting taxes,
and providing a national military for protection against internal insurrec-
tion and foreign hostility against the USA.
The conventional wisdom was that the convention in Philadelphia
would modify the Articles of Confederation while leaving intact the bias
in favor of the states over a national government. James Madison and
Alexander Hamilton had other ideas, however, which would become
clearer to the delegates once the convention got underway, and clearer to
the world, once the completed draft of the Constitution was made public.
Under the Articles of Confederation, there could be no major modifi-
cations to them without unanimous consent among the 13 states. Thus,
when Rhode Island failed to show up for the Constitutional convention,
believing that a stronger Federal Government would hurt the state, the
convention should have shut down. The new Constitution required only
9 of the 13 states to ratify it and Rhode Island took a long time to give
in, which it did on May 29, 1790, being the last of the 13 states to ratify.
This was two and a half years after Delaware was the first state to ratify on
December 7, 1787.
From May 25 to September 17, 1787, the 55 convention delegates,
with most not present all the time, set about drafting the document under
the presidency of George Washington. Pieces of the document went
through many drafts before being accepted, as did the document as a
whole. Two of the greater causes for disagreement were slavery and the
difference in power between the big states and the small states. For the
purposes of this module, discussion of one or more of the following plans
and compromises would be worthwhile.
The Virginia Plan, which Virginia Governor Edmund Randolph pre-
sented, called for the lower and upper houses of Congress to be selected
according to the size of the states. The lower house would be elected by
the voters; the upper house would be elected by the lower house. The leg-
islature would also select the executive who would play a minor role, solely
to execute the legislature’s will, as he did in the Articles of Confederation.
Small states complained that this gave big states, with many more rep-
resentatives in both houses, an unfair federal advantage. Eventually, the
delegates rejected this plan.
196 C. DREISBACH
The New Jersey Plan, which William Paterson presented, called for
keeping the Confederation Congress, which allowed each state one vote.
To critics, this would give small states a lot of federal authority out of pro-
portion to their size. Delegates rejected it quickly.
Unhappy with both the Virginia Plan and the New Jersey Plan, Alexander
Hamilton proposed a strong national plan in which state sovereignty would
be abolished, and a national bi-cameral legislature would be the central rul-
ing body. Voters would choose members of the lower house, who would
serve for three years. Voters would also choose electors who would choose
members of the upper house who would serve for life. The national legisla-
ture would choose the state governors and could veto any state legislation.
Many states at the time believed that individual states were sovereign and
the national government should be subordinate to state interests. These
proponents of states’ rights quickly did away with Hamilton’s plan.
Roger Sherman, of Connecticut, proposed the “Great” or “Connecticut”
Compromise, which called for a lower legislative house, with the number
of representatives from each state proportional to its population; and an
upper legislative house, with two senators from each state. With some
modification, this became the Constitution’s model for Congress.
A less salutary compromise was the three-fifths compromise, which
counted each slave as three-fifths of a person for the purpose of determin-
ing the number of representatives from each state.
In the end 39 of the 55 delegates signed the Constitution. Six of these
had also signed the Declaration of Independence: A. George Clymer,
Benjamin Franklin, Robert Morris, George Read, Roger Sherman, and
James Wilson. Robert Morris and Roger Sherman had also signed the
Articles of Confederation.
The signed drafts were sent to the states who were asked to ratify by con-
vention, not by state legislature. All the states eventually ratified, but some
did so by a close vote, and many did so only after proposing Amendments
to the Constitution. In an effort to encourage New York to ratify, John
Jay, Alexander Hamilton, and James Madison, published the Federalist
papers. We have talked about these Federalist papers elsewhere, but for the
purposes of implementing this module, consideration of the Federalist’s
argument structure and, time and interest permitting, content, would be
of great value in helping participants see why the Constitution offers the
provisions that it does.
While the primary purpose of the Constitution was to give the national
government a means to collect revenue—primarily through taxes—and
to build and maintain a national military, the framers recognized the
need to articulate many of the rights that the states and critics of the
Constitution demanded. The immediate result was the Bill of Rights, con-
taining the first 10 Amendments to the Constitution. Recall that until
the 14th Amendment, the Bill of Rights was seen as pertaining to the
Federal Government only, not to the state governments. Recall, too,
that Congress proposed 12 Amendments, but only the 3rd through the
12th Amendments made it in the Bill of Rights. The second proposed
Amendment, concerning raises in congressional salaries, would become
the 27th Amendment 202 years later. The first proposed Amendment has
never been ratified.
Someone implementing this module might note the early actions of
the newly formed Congress and the election of George Washington as
President in an off year—that is a year not evenly divisible by four.
Post-ratification
The remainder of this part of the module, an examination of the history
of the Constitution itself, would focus on the remaining 17 Amendments,
including their contents, their dates ratified, and the reasons behind
them. Participants might also consider the six Amendments that Congress
approved but that the states never ratified (see Chap. 6) and note that over
11,000 Amendments have been proposed, inviting questions about why
such a small percentage has been ratified, and what the next Amendment,
if there is one, would be about (Stevens 2014).
Module III: External Themes

“External” refers to themes and history beyond the constitutional docu-
ment itself. These references may still have the Constitution as a central
subject or backdrop; or these references may not have the Constitution at
their center, but may raise issues or describe historical moments that are
relevant to our understanding of the Constitution. Thus, we may divide
external themes into those that are directly relevant to the Constitution
and those that are indirectly relevant to the Constitution.
Directly Relevant to the Constitution

A component of Module I requires extra thought beyond a careful read-
ing of the Constitution. But the focus of that thought is on the text. Does
the Constitution define “cruel and unusual”? Does the document explic-
itly defend capitalism? How many crimes does the Constitution define
anything explicitly?
198 C. DREISBACH
The component of Module III that is directly relevant to the Constitution

comprises questions and theories about Constitutional implications that
the document does not expressly state or define. Categories of external
themes referring directly to the Constitution include, for example, debates
over the validity of the Constitution or parts of it; constitutional law as
an academic study; statutes that do not explicitly follow directly from the
Constitution; common law and regulations; and court decisions.
Debates Over Validity

Examples of debates over the validity of the Constitution or parts of it
include whether the Constitution governs states as well as the Federal
Government; whether the Constitution pertains to government entities
only, or whether it also applies to individuals; and whether the Preamble
can be the basis of lawsuits. Each of these has been judicially settled,
although such settlements are always open to revision or Amendment.
Recall from Chap. 5 that in 1833, the Supreme Court declared that the
Constitution did not apply to state governments (Barron v. Baltimore
1833). The 14th Amendment declares otherwise. In 1905, the Court
declared that the Constitution’s preamble cannot be the basis of a law-
suit (Jacobson v. Massachusetts 1905). “State action” refers to the principle
that the Constitution applies to governments and not to individuals (State
action 2016).
Not all debates in this vein have been settled. One that continues is
whether courts may take international or foreign law into account when
deciding on the constitutionality of an American act or statute. Justice
Antonin Scalia claims that it should not, although he is willing to consider
foreign or international law when passing judgment on treaties (Dorsen
2005). Justice Stephen Breyer claims that law comes or should come from
a democratic process and that such processes do not stop at US boundaries.
Constitutional Law as an Academic Study

While constitutional law by its very title must refer to the Constitution,
much of it takes place without looking at the document itself. This appears
to be one of the issues with the constitutional portion of police training
academies: trainees learn about court decisions and statutes that affect
police professional and personal conduct, but the trainees do not delve
into the Constitution itself, either thematically or historically, even though
academy graduates must swear an oath to the Constitution before enter-
ing the profession.
One recent text on constitutional law (Barron and Dienes 2013) indi-
cates by its outline how the study of constitutional law and a study of the
Constitution itself might dovetail (vii–ix):
Part One: Allocation of Governmental Power: National and State
I. Judicial review
II. National Legislative Powers
III. State Power in American Federalism
IV. Congress and Executive Power
Part Two: Individual Rights and Liberties: Constitutional Limitations

on Governmental Power
V. Historical Perspectives
VI. Due Process of Law
VII. Equal Protection
VIII. Freedom of Expression
IX. Freedom of Religion
X. State Action
XI. Congressional Legislation in Aid of Civil Rights and Liberties
Statutes
An obvious and useful example of statutes that do not follow from the
Constitution is the body of traffic laws. While it would appear that legisla-
tures have the right to enact traffic laws, the Constitution says nothing of
the kind and some of these laws have raised constitutional issues. For exam-
ple, under what circumstances may a police officer search your car without
a warrant if she has stopped you for a traffic violation? In 2015, the New
Jersey Supreme Court decided that the officer would need only probable
cause to suspect that the car contained illegal contraband (Toutant 2015).
The 5–2 decision rested in part on the impracticality of stricter rules.
Common Law and Regulations

Common law comes from court decisions; regulations, as the term is relevant
to this module, come from the executive branch. Either may be challenged
for their constitutionality, but neither comes directly from the Constitution.
Chapter 5 discusses legal realism, the view that for practical purposes, law is
whatever a judge decides, regardless of written legislation otherwise. When
the Supreme Court, in Plessy v. Ferguson (1896) allowed “separate but equal”
200 C. DREISBACH
treatment of Blacks, that became the law of the land until the Court overruled
itself in Brown v. Board of Education of Topeka (1954). In 1961, Pres. John
F. Kennedy issued Executive Order 10925 (1961), requiring contractors
for the government to “take affirmative action to ensure that applicants are
employed and that employees are treated during employment without regard
to their race, creed, color, or national origin” (§301, 1). Implementing this
portion of the module provides an opportunity for participants to compare
statutes, common law, and regulations; and to examine and assess several
examples of each on its own merits and on its constitutionality.
Court Decisions
Consideration of common law leads directly into consideration of spe-
cific courts cases. Participants who are sworn might feel most at home
in this context of constitutional study. Police officers, for example, can
be expected to know Mapp v. Ohio (1961), which held that any evidence
acquired in violation of the 4th Amendment is inadmissible in court; Terry
v. Ohio (1968), which found that reasonable suspicion was enough jus-
tification in some cases for frisking a suspect; and Miranda v. Arizona
(1966), which requires police officers to notify suspects of their right to
counsel, before the police begin to interrogate the suspects.
Beyond well-known cases, this portion of the module invites discussion
of many sorts of cases and the rights they either confer or deny. We have
seen many examples of such cases already in this book, but a few more
examples might be illustrative. Is flag burning protected free speech? Yes,
according to the decision in United State v. Eichman (1990). Are laws
that increase penalties for hate crimes unconstitutional? No, according
to Wisconsin v. Mitchell (1993). In constitutional terms can a trial be too
public? Yes, according to Sheppard v. Maxwell (1965).
Indirectly Relevant to the Constitution

We may divide this part of Module III into three smaller topics: the make-
up and function of US federal, state, and local government, other than
what the Constitution states explicitly; concepts often associated with the
Constitution that are not in it; and the philosophical/theoretical back-
drop for the Constitution.
Make-Up and Functions of Governments

Examples of topics in the make-up and function of the nation’s govern-
ments include the following. One electoral vote in South Dakota rep-
resents less than half as many people as one electoral vote in New York
(Monk 2003, 69). Forty-one Senators out of 100 represent only 10 %
of the US population (Monk 2003, 69–70). The executive branch is the
largest of the three branches of the Federal Government: in 2014, there
were 4,122,000 civilian and uniformed employees in the executive branch;
compared with 63,000 in the federal legislative and judicial branches com-
bined. In other words, 67 % of federal employees work for the execu-
tive branch (United States Office of Personnel Management 2016). The
Government can take away welfare benefits without notice or a chance
for a hearing (Goldberg v. Kelly 1970). Minor accomplices cannot be put
to death under the Felony Murder Rule (Enmund v. FL 1982). And in
spite of executive privilege, the President must comply with a subpoena
in criminal cases, except to protect military or diplomatic secrets (United
States v Nixon 1974).
External Themes Mistakenly Ascribed to the Constitution

Module I includes an inventory of words and phrases that are mistakenly
ascribed to the Constitution. The present module includes three concepts
that often are mistakenly associated with the Constitution: democracy,
capitalism, and American exceptionalism. Implementing this part of the
module gives participants the chance to get clearer on what they mean by
these concepts and their practical and moral value. The chance also occurs
to explore why the Constitution does not cover these topics. Among the
plausible answers, the framers rejected democracy in favor of a republican
form of government; the academic discussion on economic systems and
the growing enthusiasm for capitalism were new in 1787 and irrelevant to
the chief purposes of the Constitution; and American exceptionalism as a
premise for US global policy and international relations was not of national
interest and would not be so until the Spanish-American War in 1896.
On this latter point, in Washington’s (1796) Farewell Address, he
pleaded with Americans not to get caught in “foreign entanglements,”
since God had seen fit to put some distance between the USA and the rest
of the world. Moreover, the USA had a lot of growing and internal house-
keeping to do before it was ready to take on the world. First, it had to clear
up tension between the states’ rights people and the federalists/nation-
alists: this would take the Civil War. Then it had to recover from that
war. Except for the Monroe Doctrine in 1823, which warned European
countries not to attempt colonizing North or South America, lest they
face the wrath of the USA, America did not flex its global muscle until
the Spanish-American War. After that, of course, America has often been
seen—by itself and others—as “The City upon Hill” (Winthrop 1630;
202 C. DREISBACH
Reagan 1989). Whether this is an apt characterization and, if so, whether

it is morally appropriate are also topics that might arise during the imple-
mentation of this part of the module.
Philosophical/Theoretical Backdrop
The US Constitution is a major milestone in the social and political his-
tory of the human race. From the point of view of external themes, sav-
ing external history for the next module, a crucial element in the social
and political backdrop of the Constitution is social contract theory. The
theory as it influenced American thinking was less than two centuries old
when Jefferson incorporated John Locke’s (1690) version of the theory
into the initial draft of the Declaration. All social contract theories hold
that humans, not God, create civil society, complete with sovereign and
subjects, in order to mitigate the shortcomings of the state of nature. The
state of nature, as a social concept, is a state in which there is no human-
made government or a condition in which it is “every man for himself.”
For Thomas Hobbes (1651), this is a terrible condition to be in, since
humans are selfish, acquisitive, and roughly equal in strength and ability.
With no sovereign to keep the inhabitants from killing each other, life is
“nasty, brutish, and short.” For Hobbes, then, the primary purpose of
the government is to act as a bouncer, keeping us from doing each other
in, so that we can then pursue life’s comforts. Locke had a much more
optimistic view of human nature, believing that most people if left to their
own devices would get along fine. Fundamental to Locke’s political view
is the natural, or God-given, right to property.
Locke defined property as the ownership of oneself and the fruits of
one’s labor. Two sorts of challenges to one’s property rights might arise:
criminal and civil. Criminally, someone may try to steal someone else’s
property. Civilly, two parties may disagree about whose property is whose,
or what property one owes another. For Locke, government’s purpose is
to protect property rights against criminal and civil challenges, serving as
an umpire, rather than as a bouncer.
Jean-Jacque Rousseau (1988) had high regard for humans in their
natural state, believing them to have uncorrupted morals. Once humans
tasted the fruits of civilization, however, there was no going back to that
utopian state nature. Government’s primary purpose, for Rousseau, is
to promote the common good as much as possible. Individual humans
should strive to listen to their natural impulses and instincts, never fully
letting go of “the noble savage,” that is the human being at his or her
best. Rousseau’s greatest influence on American thought comes from his

promotion of democracy as the least objectionable form of government,
and his reverence for nature. A useful conversation at this juncture would
be over whose views among these three social contract theorists is most
evident today.
Module IV: External History

The Constitution has a lengthy pedigree and has been a significant ante-
cedent to much social and political thought that followed ratification. As
with internal history, it is useful to divide this module into two parts: pre-
ratification and post-ratification.
Pre-ratification
Pre-ratification topics in the external history of the Constitution include,
for example, political history, legal history, history of the idea of rights,
history of the idea of justice, and American history up to the Declaration
of Independence.
Political History
Political history would include theories regarding possible political sys-
tems and optimal political systems. This might be generally organized into
a monarchy, aristocracy, and democracy and its variants (Aristotle Politics,
III, 7). This history would also include an analysis of examples, such as
Athenian democracy, the Roman republic, and the British monarchy, with
an eye toward understanding how each influenced the framers.
Legal History
Legal history would include a history of the idea of law, along with the
evolution of legal practices. Over 50 years ago, Carl Joachim Friederich
(1963) published a book on the history of the idea of law, which remains
informative. He notes and describes the following theories of law:
• Law as the Will of God (Code of Hammurabi; Old Testament)

• Law as Participation in the Idea of Justice (Plato and Aristotle)
• Law as the Expression of the Laws of Human Nature (Stoics and
Romans)
• Law as Order and Peace of the Community of Love (St. Augustine)
204 C. DREISBACH
• Law as the Mirror and Part of the Divine World Order (St. Thomas
Aquinas)
• Law as Historical Fact (The Humanists)
• Statutory Law Against Natural Law (Jean Bodin, Johannes Althusius,
and Hugo Grotius)
• The English Constitutional Tradition (Sir Thomas Smith and
Richard Hooker)
• Common Law against Natural Law (James I, Edward Coke, and
Francis Bacon)
• Law as Command (Thomas Hobbes)
• Law as the Basic Law of the Constitution (John Locke and
Montesquieu)
• Law as the Expression of “Pure Reason” (Benedict Spinoza to
Christian Wolff)
• Law as the Expression of the General Will (Jean-Jacques Rousseau
and Immanuel Kant)
• Law as the Expression of the Spirit (Georg Friedrich Hegel)
• Law as Class Ideology (Karl Marx and Friedrich Engels)
• Philosophical Liberalism (Rudolf von Ihering and Rudolf Stammler)
• The Decline of Legal Philosophy (Relativists, Formalists, and Skeptics)
Legal practices in historical perspective might include forms of legislat-

ing, enforcing, and adjudication; trial by ordeal versus trial by jury; the lex
talionis—“eye for an eye”; torture as a means of eliciting a confession; and
forms and purposes of punishment.
History of Rights
A history of the idea of rights would begin with the Cyrus Cylinder. This
contains the decree of Cyrus King of Persia who, in 539 BC, conquered
Babylon. Soon, he freed the slaves, called for racial equality, and recog-
nized the right of people to choose their religion. This history would pro-
ceed by following the development of natural law theory through Greece,
Rome, and early and medieval Christianity, a theory that also includes
the concept of natural rights. Next might come the Magna Carta (1215)
and the Petition of Right (1628) which enumerate the rights that the
people of Britain have against tyrannical acts their King might do. We
might also include The English Bill of Rights (1689) and early American
compacts and treaties, although these come close enough to the time of
the Constitutional convention, that we might also include these in the
module on internal history.
History of Justice
The history of the idea of justice closely follows the history of the idea of law,
although treatment of each might follow an outline different from the other.
Chapter 2 addresses the utility of dividing the concept of justice into distribu-
tive, commutative, and retributive. It is useful further to distinguish between
legal justice and moral justice. Where much of this might be discussed in the
module on external themes, there remains a historical tale to tell about various
theories that fall under these headings. For example, distributive justice refers
to a just distribution of goods and services. Libertarians claim that justice
demands the sovereignty of each individual over his own property (Nozick
1977). What’s his is his, unless he has acquired it unjustly, and it is unjust to
take what is his without his consent. Egalitarians insist that every legitimate
stakeholder receive an equal share of the goods and services, since they can
exist only within a community whose economic and legal system permits
the production of those goods and services (Rawls 1971). Utilitarians aim
for a middle ground between the libertarians and the egalitarians, arguing
that justice requires promoting the greatest possible good for the greatest
possible number of stakeholders (Mill 1863). Each of these positions has its
historical champions, and a review of the theories and theorists in this his-
tory should help deepen one’s understanding of the Constitution and hence
improve one’s constitutional literacy.
American History
Narrower in scope and greater in relevance to the Constitution is American
history pre-ratification. Why did Europeans come to the North American
continent? A common answer is to practice their religion freely. But when
the Pilgrims arrived, the Dutch had already set up shop in the new world,
doing business with the Iroquois nation and showing little interest in reli-
giously evangelizing or proselytizing the natives (Shorto 2004). Also, the
behavior of those who sought religious freedom in the new world often
belied that commitment to freedom, because these people were hard on
those who did not see or practice religion as the authorities saw it.
Commercial interests took no back seat to religious interests among the
European movers and shakers in the new world. How much of that history
was influential on the Constitution over and against religious interests?
Post-ratification
Post-ratification external history would continue identifying the historical
vectors of the ideas of law, rights, and justice, including development of
new theories in each area post-ratification and how much influence the
206 C. DREISBACH
Constitution had on that development. Take, for example, the French

Revolution: it is arguable that France’s constitution, which was developed
in 1787, and the National Assembly, which was established in 1791, were
influenced by the US Constitution or the American attitudes and behav-
iors leading up to it. On the other hand, both the US Constitution and
the French Revolution might have been influenced by the Enlightenment,
which ought also to be a topic of discussion on the external history of the
Constitution.
In addition to continuing tracing the history of the ideas of laws, rights,
and justice, this module should include new developments in American
history. These developments include political movements, especially the
development of political parties; religious movements; technological
developments; developments in intra-national and international relation-
ships; development of democracy globally; development of constitutional-
ism globally; and the evolution of the conservatives and liberals, in their
own terms and in relation to each other.
Here is an outline of the Modules:
Module I: Internal Themes
Part 1: Requiring only a reading of the Constitution
(a) A mere inventory
1. The Preamble
2. The Seven Articles
3. The 27 Amendments
(b) A closer look at key elements of the Constitution’s structure and parts
1. General Topic Covered

2. Key Terms
3. What is not in the Constitution
Part 2: Distinguishing the Constitution from other Texts
(a) American Documents

(b) Non-American Documents
Part 3: Requiring extra thought beyond a reading of the Constitution,

such as interpretation, stipulation, or research
(a) Possible definitions of key terms

(b) Nicknames
(c) Theories of Constitutional Interpretation
(d) Theoretical Questions
Module II: Internal History

Part 1: Pre-ratification
Part 2: Post-ratification.
Module III: External Themes
Part 1: Referring to the Constitution Directly
(a) Debates over the validity to the Constitution or parts of it

(b) Constitutional Law as an economic study
(c) Statutes that do not follow explicitly from the Constitution
(d) Common Law and Regulations
(e) Court Decisions
Part 2: Referring to the Constitution Indirectly
(a) The make-up and function of the US federal, state, and local
government
(b) Concepts often associated with the Constitution that are not in it
(c) The Philosophical/Theoretical Backdrop of the Constitution
Module IV: External History
Part 1: Pre-ratification
(a) Political History

(b) History of the Idea of Law
(c) History of the Idea of Rights
(d) History of the Idea of Justice
(e) American History up to the Independence
Part 2: Post Ratification
(a) Political History

(b) History of the Idea of Law
(c) History of the Idea of Rights
(d) History of the Idea of Justice
(e) American History after Ratification
208 C. DREISBACH
HOW IT MIGHT WORK

With this proto-curriculum at the ready, we can imagine different ways to
put it to use, depending on the audience. Of course, improving the audi-
ence’s constitutional literacy is the primary goal, and one could accom-
plish this in ways that did not require specifically applying this chapter’s
proto-curriculum. But most of the contents of this curriculum, and much
that others could add, ought to be preserved, regardless of the structure
of its organization.
Sworn Personnel
In thinking about the various audiences we can, once again, divide them
into sworn and non-sworn. Sworn participants include those for whom
formal education is a prerequisite for taking the oath—whether upon
completion of training, as with police and lawyers, or at the beginning of
training, as with the military— and those for whom formal education is
not a prerequisite.
Police
As criminal justice professor Allison Chappell (2008) notes, formal police
training of any sort has been around for only about 60 years. Before that,
police learned on the job. Once formal basic training began, its contents
and methods varied across the country, but certain topics were common.
These included firearms training; defensive strategies and tactics; the pro-
cess of arrest, interrogation, and report writing; and the law, as it relates
to the officer’s jurisdiction. More recently it is common to find additional
academy training on community-police relations, communications strate-
gies, and diversity. But as we saw in Chap. 2 there appears to be little effort
toward promoting the recruits’ constitutional literacy and in many cases the
“swearing in” comes as the recruits graduate and are eager to hit the streets.
The oath and the Constitution that informs it are at risk of being a last
minute detail that stands between the officers and the start of their careers.
Police entering the profession get their training at an academy, through
designated college courses, or both. Upon completing the training suc-
cessfully, they graduate, usually taking the oath to the Constitution on
graduation day. Compare this to the military recruits who swear an oath to
the Constitution on the day they enlist—at the start of their training. Why
not have police recruits take the oath at the start of their training as well?
To be sure, many recruits who enter the academy leave the academy
before graduating, but their having taken the oath does no damage. It is
somewhat like being baptized but deciding not to practice Christianity. At
most it costs a minute or two of one’s time, even if it leads to not practic-
ing Christianity. If academies are still reluctant to swear in their recruits at
the beginning of the training, then the recruits should still be made aware
up front about the fact and contents of the oath.
Once the recruit has taken the oath upon entering the academy, or been
made aware of it in detail, training policy should encourage the students to
challenge their instructors by asking what the particular bit of instruction
has to do with the oath: how is this instruction going to contribute to the
officer’s ability to fulfill the oath?
The curriculum should also include courses or sections of courses that
promote constitutional literacy. This is not to deny the importance of
training the recruits in the areas noted above, including defensive tactics,
use of firearms, and the mechanics of arrest; but it is to take seriously the
officers’ swearing an oath that they may not understand or appreciate in
the absence of adequate training on the Constitution.
Consider the basic training curriculum of a highly regarded and effec-
tive state agency, the Florida Department of Law Enforcement (FDLE).
I have done ethics training for FDLE and am impressed by its commit-
ment to professional development of police. Nonetheless, in its basic
training program, there is room for more study of the Constitution—
whether by adding hours or by replacing some items in the present
curriculum—thus increasing the quantity and quality of time necessary
to make the police personnel constitutionally literate to the extent this
book proposes.
FDLE’s Basic Recruit Training Curriculum is divided into two parts:
law enforcement and high liability. There appears to be no treatment of
the Constitution in the second part.
Part One, law enforcement, has 12 courses, comprising 454 hours of
instruction. Of these courses, the course titled “Legal,” is relevant to our
discussion. Titles of the other courses include Interviewing and Report
Writing; Fundamentals of Patrol; Calls for Service; Criminal Investigations;
Crime Scene to Courtroom; Critical Incidents; Traffic Stops; and DUI
traffic stops.
The course titled “Legal,” runs 62 hours (14 % of Part One; 8 % of
the program overall when one adds the 316 hours of Part Two). It has six
units, the first two of which have constitutional components.
210 C. DREISBACH
Unit 1, Introduction to Law, has three lessons the first two of which are
all about the Constitution. Lesson 1 looks at the Evolution of Laws. This
corresponds to external themes and external history (Modules 3 and 4) in
our proto-curriculum. Lesson 2 focuses on Constitutional law, under the
topical headings of Basic Concepts of the Constitution, The Articles of
the Constitution, and The Amendments of the Constitution. This lesson
corresponds to Module I, part 1 of our proto-curriculum, requiring only a
reading of the Constitution.
Unit 2, Legal Concepts, has five lessons, three of which focus on the
4th Amendment. A fourth lesson focuses on the Miranda Warning, which
relates to the 5th and 6th Amendments, that is the right against self-
incrimination and the right to counsel, respectively. In terms of our proto-
curriculum, these lessons are a continuation of Module I, part 1.
The remaining units in the course include Substantive Criminal Law,
Civil and Criminal Liability, Response to Civil Issues, and Juvenile Law.
Roughly a third of the course, “Legal,” incorporates the Constitution.
This comprises approximately 11 hours, or 1 % of the basic training pro-
gram. All of the topics in FDLE’s curriculum are important to police train-
ing, so there is no topic or course to discard and replace with something
in the Constitution. It might be possible to incorporate the Constitution
across the curriculum, including elements from any or all of our four mod-
ules, in treatment of the curriculum topics. For example, where the cur-
riculum already examines the anatomy of the Constitution, it might put
that anatomy into historical context (Modules II and IV). In other units
in the course “Legal” there may be room to discuss the history of the idea
of rights and the history of the idea of justice (Module IV). In the course
“Crime Scene to Courtroom,” there might be discussion of the differ-
ence between the adversarial system of justice and the inquisitorial system.
There might also be a discussion of the jury’s rights and responsibilities
and the possibly ill effects of a constitutionally illiterate jury. Module III
of our proto-curriculum includes these topics.
Taking a different tack, given the wide range of police basic training hours
(360–1800) across the 50 states, it would not be out of the ordinary for FDLE
to add hours to accommodate the Constitution directly, offering a full course,
for example, that includes all four modules of our proto-curriculum and
devotes more time to the history and thoughts underlying the Constitution.
FDLE appears to offer excellent basic training. But it could do more
to enhance the constitutional literacy of the recruits who will, at the com-
pletion of their training, enter the profession by taking an oath to the
Constitution.
FDLE (Florida Department of Law Enforcement 2015) also offers

45 advanced training courses and 30 specialized training courses. None
of these is about the Constitution or suggests any topics that our four-
module proto-curriculum covers.
Military
In the USA all military personnel take an oath upon enlistment or upon
beginning officer training. As one website (Be ready to raise your right
hand 2016) puts it:
Everyone who joins the military has one thing in common, they must swear-
in by repeating the enlisted or officer Oath.
The Oath of enlistment is something that every service member must

promise and adhere to for his/her entire military career. From the Oath,
you can see that you will be defending the Constitution—not a person.
Discipline and accepting orders is sworn to. Finally, you vow to face the
UCMJ (Uniform Code of Military Justice) should any disputes arise.
This site adds
Before you raise your right hand, make sure you understand what you are
swearing or attesting to. The oath of enlistment should not be taken lightly,
you will be bound by it for the next 4 to 6 years at a minimum.
But description of military training curricula reveals little or no effort to

explain or enforce this commitment to defending the Constitution. Typical
of all the US military branches in this regard is the US Army‘s (2016a)
basic training. This training lasts 10 weeks and consists of three phases:
Red, White, and Blue. Topics include, field exercises; marksmanship train-
ing and repelling exercises; and weapons training and night infiltration,
respectively. Advanced individual training (United States Army 2016b) is
available from any of 17 schools, but none of these offers anything about
the Constitution.
• Adjutant General School

• Air Defense Artillery School
• Aviation Logistics School
• Chemical, Biological, Radiological, Nuclear School
• Department of Defense Fire Academy
• Engineer School
212 C. DREISBACH
• Field Artillery School

• Financial Management School
• Infantry School
• Military Police School
• Ordnance Mechanical Maintenance School
• Ordnance Munitions and Electronics Maintenance School
• Quartermaster School
• Signal Corps School
• Transportation School
• US Army Armor Center
• US Army Intelligence Center
Among these one might expect the Military Police School to bring up the
Constitution, but there is no indication that the school does so. As the
website (United States Army 2016c) for this school explains:
Job training for military police requires 20 weeks of One Station Unit
Training and on-the-job instruction in police methods. Part of this time is
spent in the classroom and in the field.
Some of the skills you’ll learn are:
• Basic warrior skills and use of firearms

• Military/civil laws and jurisdiction
• Investigating and collecting evidence
• Traffic and crowd control
• Arrest and restraint of suspects
It would be appropriate to include material from all four modules of our

proto-curriculum in the training of military police. And since all military
personnel swear an oath to the Constitution, the people responsible for
their training should ensure that the trainees learn enough about the
Constitution to fulfill their oath intentionally and to assess how well they
are doing along the way.
Lawyers
The oath of office is a condition of admission into state bar associations in
the USA. An Oath on Admission is also required of any attorney seeking
to practice in federal court:
I, do solemnly swear (or affirm) that as an attorney and as a counsellor of

this court I will conduct myself uprightly and according to law, and that I
will support the Constitution of the United States. (United States Courts
2016)
To practice before the US Supreme Court requires taking the oath

again:
Each applicant shall sign the following oath or affirmation: I, do solemnly

swear (or affirm) that as an attorney and as a counselor of this Court, I will
conduct myself uprightly and according to law, and that I will support the
Constitution of the United States. (Supreme Court of the United States
2016)
One would expect law school graduates to have studied the Constitution
diligently and a review of American law schools suggests that that is the
case. How much exposure a student gets depends on the school and on the
student’s concentration within the school’s program. At the University of
Baltimore Law School (2016), for example, students are required to take
six credits in Constitutional law in a program that requires 87 credits over
all. Students may take two additional courses in Constitutional Criminal
Procedure. As the course descriptions indicate, a student who takes all
four courses receives a worthwhile education on the Constitution:
• Constitutional Law I: LAW 650, 4 credits

– An introduction to the structure of the US Constitution and the
powers, rights, and liberties it defines. Topics include judicial
review; limitations on judicial power; nature of and separation of
powers; federalism, including the Commerce Clause and the 10th
Amendment; state action; procedural and substantive due process;
and equal protection.
– Constitutional Law II: LAW 650, 4 credit
– An introduction to the structure of the US Constitution and the
powers, rights, and liberties it defines. Topics include judicial
review; limitations on judicial power; nature of and separation of
powers; federalism, including the Commerce Clause and the 10th
Amendment; state action; procedural and substantive due process;
and equal protection.
214 C. DREISBACH
• Constitutional Criminal Procedure I: LAW 711, 3 credits

– An examination and analysis of constitutional principles gov-
erning the admissibility of evidence in criminal proceedings and
regulating the conduct of criminal prosecutions, primarily focus-
ing on the pre-trial stages. Subjects include the exclusionary rule;
probable cause; arrest; search and seizure; electronic surveillance;
compelled self-incrimination, immunity, and confessions, identi-
fication, the right to counsel, preliminary hearing and pre-trial
motions.
• Constitutional Criminal Procedure II:
– A continuation of the study, begun in Constitutional Criminal

Procedure I, of constitutional principles governing the conduct of
criminal prosecutions, with special emphasis on the trial and post-
trial stages. Subjects include the charging process; bail and pre-
trial release; discovery; double jeopardy and collateral estoppel;
speedy trial; public trial; jury trial; guilty pleas and plea bargain-
ing; the right to confrontation; sentencing; appeals; and collateral
post-conviction remedies.
Students who take all four of these courses will have encountered most
of the material that Module I (internal themes) of our proto-curriculum
would cover and much of Module II (internal history). In other words,
these four courses cover the anatomy and physiology of the Constitution.
These students would benefit even more, however, if the curriculum
included more material of the sort that our Modules III and IV, external
themes and external history, cover.
Police officers and lawyers do a lot of training or course work before
they take the oath of office. Military personnel take the oath of office
just before entering the training that should help them fulfill that oath.
Whether that training or education matches the depth of importance of
the oath remains an open question.
Then there are the people who take the oath but do not require rel-
evant education before or after the oath. These include, for example, most
elected officials; many appointed officials, such as judges and cabinet sec-
retaries; and many federal employees. Is it not unfair to ask people to
promise to uphold and defend the Constitution when they have little idea
what it is they are promising to uphold and defend? Why not insist that
everyone who takes the oath take a preparation or refresher course on the
Constitution? Such a course could include one or more of the elements
of our proto-curriculum. Given online technology, this shouldn’t be too
complicated. Then the person about to be sworn would have to pass a
simple test. The details could be worked out statutorily or by Amendment.
As columnist George F. Smith (2001) asks, in his support of the Liberty
Bill Act:
Wouldn’t it be nice if the Constitution had an amendment requiring office-

elects to prove they actually understood the document they solemnly swear
to defend? That even if elected, they could not take office without earning a
minimum grade on an exam? Sounds a little like school, doesn’t it?
One objection to this idea is that it might prevent the winner of an

election from taking office or prevent an otherwise able appointee or
employee from getting the job. But this objection either presumes too
difficult a test or too incapable the person of achieving an appropriate
level of constitutional literacy. Neither of these presumptions is reason-
able. We already have one test that has been worked on and applied mil-
lions of times: the test for US Citizenship (United States Citizenship and
Immigration Services 2016). Several of the questions on this test per-
tain to the Constitution. There is, after all, no constitutional right to be
constitutionally illiterate, especially for anyone who swears an oath to the
Constitution.
One more point. The constitutional requirement to take the oath does
not specify whether the oath takers must raise their hand or put a hand on
a document. Legend has it that Washington took the oath with his hand
on a Bible and added the plea “so help me God.” There is disagreement
about this, but the tradition has stuck. Why not insist that if one is going
to place a hand on a document during the swearing in the document be
the Constitution? (Badash 2015).
Non-sworn Stakeholders
Throughout this book, we have divided the stakeholders of constitutional
literacy into sworn and non-sworn. So far in this chapter, we have focused
on a proto-curriculum for promoting, and improving, constitutional lit-
eracy and have spent the better part of the chapter looking at constitu-
tional training and education—or lack thereof—for sworn officials. But
216 C. DREISBACH
we began this chapter looking at a grassroots campaign, run by a non-

sworn group of middle schoolers, with sage guidance from their teacher,
for promoting constitutional literacy by putting the Constitution or some
parts of it on the back of the $1 bill. We are at a point where we want to
consider further how we might promote constitutional literacy among the
non-sworn.
Formal Education
One approach would be to distinguish between efforts involving formal
education and efforts not involving formal education. As Law Professor
Laura McNabb (2013) notes, there are two broad categories of civics edu-
cation: K-12/post-secondary and outside of the school system. The for-
mer, she argues, has greater potential, because every capable child must
receive education at the level. In this spirit, the Michigan legislature is
considering making the reading of the Constitution mandatory in public
schools (Haq 2015). At the same time, Gary Schmitt and Cheryl Miller
(2013), from the American Enterprise Institute, report
The US Department of Education’s decision to indefinitely postpone nearly

all national exams in civics and US history eliminates the only objective
gauge of whether students are learning basic US history and the essential
skills need to be good citizens. Sadly, we already know they aren’t.
On the other hand, the Marshall-Brennan Project has a had a lot of suc-
cess since 1999 in encouraging second- and third-year law students, along
with LLM students, to teach public high school students in Maryland
and D.C. about juvenile justice and constitutional law (Raskin 2013). At
this writing, the program is beginning to expand across the country. The
emphasis in these courses is to raise students’ consciousness about their
rights and their role as citizens in the USA. While there might be room for
more of such education for students involved in this project, elements of
which we might identify from the four modules of our proto-curriculum,
one has to congratulate the program’s founder, Prof. Jamin Raskin, and
its participants on an exemplary initiative for promoting constitutional
literacy among public schools students. But more could be done.
Beginning with the teachers, what if teachers in public school had
to swear an oath to the Constitution? New York, for example, has this
requirement:
Education Law, Section 3002, requires that citizen teachers serving

in the public schools of New York State file a statement to support the
Constitution of the United States of America and the Constitution of the
State of New York. It is unlawful to permit a person to serve as a teacher in
violation of Section 3002. (OCM BOCES 1999)
So does Nebraska, although its 1951 rhetoric seems over the top:
All persons engaged in teaching in the public schools of the State of

Nebraska and all other employees paid from public school funds, shall sign
the following pledge:
I, …, do believe in the United States of America as a government of the peo-
ple, by the people, for the people; whose just powers are derived from the
consent of the governed; a democracy in a republic; an indissoluble nation
of many sovereign states; a perfect union, one and inseparable; established
upon those principles of freedom, equality, justice and humanity for which
American patriots sacrificed their lives and fortunes.
I acknowledge it to be my duty to inculcate in the hearts and minds of all

pupils in my care, so far as it is in my power to do, (1) an understanding of
the United States Constitution and of the Constitution of Nebraska, (2) a
knowledge of the history of the nation and of the sacrifices that have been
made in order that it might achieve its present greatness, (3) a love and
devotion to the policies and institutions that have made America the finest
country in the world in which to live, and (4) opposition to all organiza-
tions and activities that would destroy our present form of government.
(Nebraska Legislature 2016, Neb. Rev. Stat. 79-8, 108)
The ACLU is suing a Nebraska school district for enforcing this law,
where most school districts in Nebraska have not enforced it. The ACLU
argues that it is a violation of a teacher’s free speech, which may include
expressions of dissent against the government (Owens 2015). The US
Supreme Court seemed to have settled the matter in 1972, when it
declared that “requiring public employees to take a general oath to the
Constitution is not unconstitutional so long as there is no requirement
for a specific action beyond the oath and that the oath at most expresses a
commitment to abide by our constitutional system” and “a commitment
not to use illegal and constitutionally unprotected force to change the
constitutional system” (Cole v. Richardson 1972).
218 C. DREISBACH
Whether teachers should take an oath, it seems reasonable to require

schools to promote constitutional literacy somehow, whether by a specific
course or “across the curriculum.” Social studies teacher, Christian Garcia
argues for teaching the Constitution across the high school curriculum as
a means to meeting standards in several academic areas—government, his-
tory, literature, economics- and reinforcing to the students its importance
(Garcia 2015). The proto-curriculum offers one way to organize the set
of topics and to pick from those topics as necessary.
Since civics was a mainstay of secondary education for a long time,
but the absence of constitutional literacy is commonplace, one wonders
whether there isn’t a better way to teach civics so that high school gradu-
ates retain it better. Teaching to the citizenship test and requiring students
to pass it before graduating it might be a good means to this end.
Non-formal Education
We have given some thought to ways of promoting constitutional literacy
in formal education. But much of what we learn comes from outside of
formal education. Political scientist Arthur Lupia argues convincingly that
voters would be more engaged in supporting or rejecting new laws, if they
were educated about these laws in ways that make the matter personal
(Lupia 2015). Lupia, puts the onus especially on teachers, journalists, and
advocates to find ways to make the political concerns of the day personally
important to their audiences. While Lupia is talking about political issues
broadly, such as global climate change, we can easily make his argument
work for us in our attempt to promote constitutional literacy. The typical
voter may be uninterested in civic literacy, but convince her that it is essen-
tial to voting wisely and otherwise getting the “best bang for her buck” as
a citizen, and watch her interest climb. At the same time help her see that
constitutional literacy will serve her in pursuing this interest.
How might we promote constitutional literacy informally, targeting
people who cannot or will not study the Constitution formally, but still
plan to be an active member of a society that the Constitution governs?
We opened this chapter with a good idea: the Liberty Bill Act. By enact-
ing this bill the US Government would show its support for constitutional
literacy among citizens and interested non-citizens alike.
Online resources already exist and more might be developed, with suf-
ficient marketing to draw people’s attention to the sites and to encour-
age their participation. Apps and contests might make this approach even
more effective.
Elder hostels and non-credit programs, such as Osher and Odyssey at

Johns Hopkins University, attract people who want to learn for the sake
of learning. These organizations could take a lead in promoting consti-
tutional literacy by offering courses that map to the four modules of our
proto-curriculum.
Interested parties, with a push from the public, might create public
service announcements on a regular basis. Two relevant examples here are
NBCs “The More You Know” public service announcements and School
House Rock—short animated videos that taught about history, science,
and politics. Many people that I encounter remember seeing the School
House Rock offering “I’m Just a Bill,” which addresses the creation and
passing of a bill in Congress (Frishberg 1975). While the target audience
for these musically catchy lessons was school aged children, they often
resonated—and stuck—with audiences of all ages.
The League of Women Voters has quite a platform and could do more
to promote constitutional literacy. Through social media, printed media,
conferences, and get-out-the-vote efforts, the leaders of the League have
a wide audience. The Constitution is relevant to almost every topic, issue,
and initiative that the League puts forth. But the constitutional elements
tend to be presumed rather than expressed. The League is in a position to
offer people many opportunities to develop their constitutional literacy.
We might also take Constitution Day, September 17, more seriously, work-
ing through government and corporate America to make the day as important
as or more important than July 4. Again the proto-curriculum gives us an idea
of how we might organize topics surrounding the celebration of Constitution
day for the purposes of public discourse about the Constitution.
SUMMARY
This chapter has proposed a model proto-curriculum along the lines of the
test by which we have demonstrated the lack of constitutional literacy and by
which we have offered one way to assess constitutional literacy. This proto-
curriculum has four modules: internal themes, internal history, external
themes, and external history. This chapter also has proposed suggestions for
organizing each module and for possible content in each module.
Next came some thought about who might benefit from application
of this proto-curriculum. Both sworn and non-sworn stakeholders could
benefit from exposure to any or all of these modules either through formal
education or informal education.
220 C. DREISBACH
In the next chapter we conclude with a look ahead in pursuit of consti-

tutional literacy.
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CHAPTER 7
Conclusion
From the opening of the Constitutional convention to the present,

American political conversation invoking the Constitution has been rau-
cous, robust, and frequently significant in its impact on public policy and
on individuals’ lives. How much better would things be if many more
stakeholders in this conversation were constitutionally literate? This book
is a plea for that literacy, adding its voice to a chorus that seeks to dem-
onstrate the value of constitutional literacy and to suggest improvements.
This chapter summarizes the book’s efforts and suggests next steps.
As Chap. 2 states, a useful working definition of constitutional literacy
is knowledge of the Constitution sufficient to invoke it properly. People
may invoke the Constitution verbally or by implication through specific
behavior, such as voting or participating on a jury.
Constitutional literacy is a matter of degree. Some people have sworn an
oath to the Constitution, and thus, should know it well enough to know
how to assess the success with which they are fulfilling that oath. Others
have sworn no such oath, but their participation in civic life necessitates
some familiarity with the Constitution nonetheless. Toward a more detailed
definition, Chap. 2 identifies eight levels of constitutional literacy, thus offer-
ing an ostensive definition that exists on a continuum from basic literacy to
the scholarly literacy that one would expect of the Supreme Court justices.
The lack of constitutional literacy, even at the highest levels of sworn
professionals, is easy to demonstrate. Chapter 1 began with quotations
from US Representatives, judges, and opinions leaders who confused the

DOI 10.1057/978-1-137-56799-4_7
226 C. DREISBACH
Constitution with the Declaration of Independence. We saw subsequently

that the two documents have little in common both theoretically and in
their purposes. The two documents disagree on the nature of law, the
nature of rights, and the nature of justice. The purpose of the Declaration
was to articulate America’s reasons for splitting from England, and possibly
to recruit colonial soldiers into the revolution against the crown. The pur-
pose of the Constitution was to develop a national military and a national
system for collecting revenue from the states. To appease those who were
reluctant to hand over personal or state power, the Constitution recog-
nizes certain rights, but this statement of rights was not the Constitution’s
primary purpose.
Moving beyond anecdotal evidence of sworn officials’ constitutional
illiteracy, Chap. 3 offers three other types of evidence for pervasive lack
of constitutional literacy. First are studies that legal scholars and founda-
tions have done. These studies suggest a lack of constitutional literacy,
the value of increasing constitutional literacy, and means of effecting that
increase. Second is a review of police basic training programs, with a focus
on courses, units, or topics that refer to the Constitution specifically or
obliquely.
The third bit of evidence for a pervasive lack of constitutional literacy
comes from a test that I have administered over the years, most often to
students at the beginning of my course, Applied Ethics, the Constitution,
and Leadership. Selecting five cohorts, consisting of 90 people, the results
show an average score of 36 %, and an average of 45 % getting any one
question, right.
It is harder to demonstrate the practical and moral value of constitu-
tional literacy than to demonstrate the lack of it. Anecdotal and histori-
cal evidence suggest that sworn officials and non-sworn stakeholders alike
go through their professional and civic lives fine without having devoted
much time to studying the Constitution. One tack is to argue a priori
for the value of constitutional literacy. All people entering a profession
by taking an oath to the Constitution have a moral duty to know the
Constitution sufficiently to determine whether they are fulfilling the oath,
that is, to ensure that they are not breaking their promise. In practical
terms, it is easier to do our jobs when we know what we are doing. All
people who invoke the Constitution to justify their assessment of a public
policy decision or to justify their vote in an election have a civic duty to
know what they are talking about. In practical terms, their civic lives will
run more smoothly if these people know what they are doing.
CONCLUSION 227
Chapter 4 gathers up the discussion of the value of constitutional lit-

eracy by arguing for the necessity of virtue. Both sworn and non-sworn
should engage their constitutional lives with integrity. Integrity is a matter
of integrating the cardinal virtues of courage, justice, temperance, and
prudence into one’s life. Virtue, in general, is the ability habitually to
know the good and to do the good. The good is the mean between the
extremes of deficiency and excess. Constitutional literacy as people exhibit
it verbally or behaviorally, then, is a matter of virtue.
To convince people of the a priori value of constitutional literacy does
not settle the question of its efficacy. For example, are constitutionally
literate police better at their job than their constitutionally illiterate coun-
terparts? If statistics suggest an affirmative answer, is constitutional literacy
the cause? Does constitutional literacy improve government-citizen rela-
tions? Does constitutional literacy lead to better public policy?
Before gathering the data toward answering these questions, we need
an effective means of assessing constitutional literacy. Chapter 5 offers a
way of organizing the questions, checking for literacy in four areas relative
to the Constitution and asking questions at three levels of difficulty: easy,
medium, and hard. How reliable this model is overall at determining con-
stitutional literacy, and how well each question is written, remain as open
questions, pending further study of the model itself.
Using the model for determining the present state of constitutional literacy
among those it tests, Chap. 6 moved to a proto-curriculum to use toward pro-
moting and improving constitutional literacy. This proto-curriculum may be
useful in formal education and outside formal education. Pieces of it, as well
as the levels of difficulty it accommodates, can serve schools K-12, colleges,
training academies, in-service training, and professional continuing educa-
tion. This proto-curriculum can also serve as a foundation for public service
announcements and other forms of advocacy for constitutional literacy.
Of course, there is a difference between promoting anything and
improving it. Thus, any effort in this vein would have to be assessed on
two counts: how well it is getting the word out, and whether it is lead-
ing to improvement in constitutional literacy. Even where there is marked
improvement following these promotional efforts, the question of cause
and effect remains open.
This book aims at contributing to the conversation about constitutional
literacy, while acknowledging other efforts to that end, many of which
deserve more attention. One of these is the student-led Liberty Bill Act,
which seeks to put some part of the Constitution on the back of US $1 bills.
228 C. DREISBACH
As with other efforts, its potential efficacy remains uncertain until the effort
has been made and given a sufficient amount of time to work. But vending
machine lobbyists and certain aesthetic concerns aside, the Liberty Bill Act
is a remarkable contribution to our thinking about constitutional literacy.
The scope and limits of this book point to two sorts of next steps: those
that follow this book’s lead and those that might contribute to constitu-
tional literacy in other ways.
Following this book’s lead, one might gather more evidence of consti-
tutional illiteracy. Evidence probably exists in public speeches, editorials
and op-eds, letters to the editor, transcripts of call-in programs, and ratio-
nale in proposed legislative bills. As this book was nearing completion an
article appeared in Time magazine in which Michael Scherer, Time maga-
zine’s political correspondent in Washington, DC, speaks of the found-
ers “forg[ing] a union with safeguards: due process of law, inalienable
individual rights and a byzantine electoral system that intentionally slowed
fury and change” (Scherer 2015). Since the Constitution says nothing
about inalienable rights, one hopes that Scherer is referring to both the
Declaration and the Constitution here and has them distinct in his own
mind. But the quote could be read as suggesting a conflation of the two.
At a debate among Republican candidates for President, New Jersey
Governor Chris Christie declared that evidence for the 2nd Amendment’s
special importance is its having been the 2nd Amendment among the
initial Amendments to the Constitution (Transcript of Republican
Presidential Debate 2016). Christie is wrong. It was the 4th Amendment
that Congress proposed, although the states failed to ratify the first two
proposed Amendments, leaving one of them to be ratified 202 years later.
It is not clear that placement of the original Amendments relative to each
other has any significance whatsoever, but Christie is wrong in any case.
Christie’s is a minor infraction, but since he brought up the issue it would
be good for him to know what he is talking about as a sworn official.
One might consider improved or new ways of assessing constitutional
literacy over the four-part test that I have used. Even if one finds my
method useful, there is work to be done to insure its validity and to admin-
ister it to more people. When I began this project, I used hard copies of
the assessment, with no easier means of analyzing the answers than work-
ing through each one by hand. Future iterations of this project should use
an electronic survey tool, such as Survey Monkey, which would permit
random generation of questions, immediate feedback to the test-taker,
and immediate and continually updated analysis of the data.
CONCLUSION 229
Following this book’s lead, one might improve or revise the proto-
curriculum, developing more complete curricula to serve different
populations. Such curricula would include rationales, course objectives,
unit-by-unit topics and readings, and means of assessment.
Research is necessary to see how effective any of this is. This research
question itself needs refining, and specific research methods need articula-
tion. All of this rests on the presumption that there is too much constitu-
tional illiteracy and that the more stakeholders are constitutionally literate,
the better for them and for the greater good.
Stepping outside this book, one might study material that already exists
whose primary purpose is to promote constitutional literacy. This mate-
rial will include texts that argue for the value of constitutional literacy and
many works that seek to contribute to people’s constitutional literacy. This
material may also include curricula from schools and training academies
that purport to teach the Constitution. Comprehensive evaluation of any
of this material will assess its accuracy, thoroughness, and level of dif-
ficulty. The evaluation would identify any biases—political, cultural, reli-
gious, or philosophical. And these evaluations would include suggestions
for improvement.
It would be interesting to put this study in a broader context, looking
at the corresponding situations in other countries. How many countries
have Constitutions? In each of these who, if anyone, must swear an oath
to that Constitution before entering into a profession? What is the current
status of constitutional literacy in that country? How do we know? If the
level of constitutional literacy is low, is there any evidence that life in that
country would be better if the constitutional literacy were higher?
The framers of the US Constitution, not trusting in majority rule,
seemed to have taken the lack of constitutional literacy for granted among
the citizenry and did little to promote it. Instead, the framers developed a
system of government that protected it against the inevitable constitutional
illiteracy of the populace. The framers also appeared to presume adequate
constitutional literacy among the government’s leaders, although even
here the framers put in a series of checks and balances. Over time, more
people became eligible to vote: Black men, women, poor people, citizens
of DC, and 18-year-olds. This suggests a popular move toward including
more people formally in the processes of the government.
At the same time, social and political life has become more complicated,
with technology leading the way in opening up the world and making
vast amounts of information available that would have been unavailable or
230 C. DREISBACH
much harder to access in the absence of this technology. Thus, both sworn
and non-sworn stakeholders face professional and civic challenges that call
for adequate constitutional literacy, if they do not want to rely solely on
the chance that their decisions will be the right ones.
What counts as constitutional literacy, let alone adequate constitutional
literacy, is a matter for further discussion. That it is imperative in this age
of global politics; increased access to information, both accurate and inac-
curate; and rapidly changing mores is a given.
REFERENCES
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http://www.nytimes.com/2016/01/15/us/politics/transcript-of-
republican-presidential-debate.html?_r=0.
INDEX
A American Civil Liberties Union

abortion, right to, 25, 31, 32, 79 (ACLU), 79, 217
Abramson, Jeffrey, 104, 105 American Enterprise Institute, 216
absolutism, 96, 102 American exceptionalism, 201
accuser, right to face, 32, 88, 91, 135 Annenberg Public Policy Center, 51,
ACLU. See American Civil Liberties 53, 71
Union (ACLU) anti-commandeering rule, the, 142
active liberty, 165 Applebaum, Yoni, 111, 112
Adams, John, 10, 28, 66, 69, 144, Applied Ethics, the Constitution, and
151, 153, 166 Leadership, 4, 17, 50, 61, 123, 226
Adams, John Quincy, 69 argumentum ad populum, 97
Addington, Lynn, 52, 94 Aristotle, 5, 26, 27, 95, 100, 102,
Adler, John, 83 105, 203
adversarial system, 33, 89–92, Article I, 18, 120, 129, 136, 138,
210 142, 146, 160, 189
affirmative action, 200 Article II, 19, 86, 136, 151, 172,
Affordable Health Care for America 173, 189
Act, 130 Article III, 19, 90, 136, 189
Agel, Jerome, 29 Article IV, 187, 189, 190
Ahranjani, Maryam, 52, 95 Article V, 19, 81, 155, 163, 187, 189,
Alito, Samuel, 83, 111, 165 190
Allen, Arenda Wright, 2, 50 Article VI, 141, 158, 187, 189, 190
amendment process, 19, 29, Article VII, 187, 189, 190
111, 163 Articles of Confederation, 18, 20, 21,
America, a Christian nation, 131, 65, 127, 129, 130, 161, 191,
150 194–6

DOI 10.1057/978-1-137-56799-4
232 INDEX
assembly line justice, 91 Boehner, John, 1–3, 50

Athenian democracy, 167, 203 Boston Tea Party, 11
attainder, bill of, 20, 189 Bowman, B., 83
attorney, right to, 9, 162 Boyd, Julian, 167
Atwood, James, 44 Boyer v. Louisiana, 136
autonomy, individual, 78 Bradley, Joseph P., 172
Azzize of Clarendon, 134 Bradwell v. Illinois, 69, 171, 172
Branch v. Texas, 171
Breaking new ground, 172
B Brennan, William, 171
Babcock, Barbara, 164 Brewer, David Josiah, 171
Badash, David, 215 Breyer, Stephen, 37, 46, 165, 174, 198
Baker v. Carr, 24, 68 Brown v. Board of Education, 24, 25,
Baltz, Shirley, 194 165, 200
Baradaran, Shima, 141 Bunning, David L, 79, 80
Barber, Benjamin, 168 Bureau of Justice Statistics, 175
Barker v. Wingo, 135 Burger, Warren, 48
Barron, Jerome, 199 Burr, Aaron, 151
Barron v. Baltimore, 151, 152, 198 Bush, Jeb, 84
basic training Bush v. Gore, 172, 174
army, 211, 212 Bush v. Palm Beach County
police, 4, 9, 53–8, 71, 208–10 Canvassing Board, 173
Bayles, Michael, 5, 103 Byrd, Robert, 122
bear arms, right to, 9, 23, 31, 43–8,
64, 162, 164, 190
Bennett, Stephen, 51 C
Bennis v. Michigan, 164 Cantor, Eric, 183
Benton, Michael, 144 capitalism, 160, 197, 201
Be ready to raise your right hand cardinal virtues, 100, 102, 227
(website), 211 Caudill v. Scott, 152
Berger v. New York, 34 Center for American Progress, 1, 2
Berlin, Isaiah, 31 Center for Civic Education, 12
Bernstein, Richard, 119, 120, 121 Chamberland, Michele, 79
Beshear, Steven, 79, 80 Chappell, Allison, 208
Bevin, Matt, 82 Child Labor Amendment, 154
Bill of Rights, 23, 54, 68, 78, 119, Christie, Chris, 228
121, 129, 144, 148, 151–3, 158, Church of the Holy Trinity v. United
168, 169, 187, 192, 197, 204 States, 131
Blinder, Alan, 80 City of Boerne v. Flores, 81
Bloom, Sol, 144 City upon the Hill, 201
Blue & Gray Taxi Cab Company, 28 civic literacy, 12, 218
Boaz, David, 50 Civil Rights Act of 1866, 110
INDEX 233
Civil War, 37, 153, 188, internal themes, 6, 63, 124–7, 133,
192, 201 176, 186–93, 219
Clinton, Hillary, 83 lack of, 3, 4, 6, 16, 38, 43–71, 94,
Clymer, A. George, 196 102, 113, 126, 137, 176, 219,
Coffin v. United States, 141 225, 226, 229
Cogan, Neil, 23 moral value, 4, 71, 84, 89, 95–103,
Coke, Sir Edward, 134, 135, 204 113, 226
Cole, David, 143 nature of, 4, 9–38
Cole v. Richardson, 217 practical value of, 84–95, 103, 104,
Coleman v. Miller, 122 113
Commerce Clause, the, 160, 192, 213 test for, 6, 124
common law, 10, 24, 90, 104, 190, value of, 4, 6, 71, 77–113, 122,
198, 199–200, 204 176, 225–7, 229
congressional salaries, 120, 121, 136, 197 Constitution Day, 219
Connecticut Compromise, 196. See Cook v. Morrill, 152
also Great Compromise Cooper v. Aaron, 24, 68, 158, 159
consequentialism, 96–8 Corwin, Thomas, 154
Constitution Coshnear, Lawrence, ix, 12, 61
anatomy of, ix, 12, 13, 17, 19, 38, counsel, right to, 23, 29, 32, 88, 134,
49, 58, 61, 176, 187, 210, 214 190, 200, 210, 214. See also
physiology of, ix, 12, 13, 38, 49, attorney, right to
58, 61, 214 courage, virtue of, 100, 101, 227
preamble to, 1, 2, 21, 27, 46, 85, Cramer v. United States, 128
111, 157, 163, 183, 184, 189, creationism, teaching of, 159
198, 206 Crimmins, Charles J., 94
Constitutional Convention, 7, 19, 20, Cruz, Ted, 81
22, 23, 24, 51, 60, 65, 66, 112, C-Span, 1
120, 121, 128, 129, 139, 144, Cyrus Cylinder, the, 204
148, 161, 193, 194, 195, 204, 225 Cyrus King of Persia, 204
constitutionalism, 206
constitutional literacy
assessing, 4, 6, 7, 61, 86, 119–77, D
186, 227, 228 Danbury Baptist Association, 149
definition of, 4, 12–17, 38, 49, 60, Davis, Kim, 77–84, 89, 92,
102, 225 95–7, 111
external history, 6, 70, 124, 126, Declaration of Independence, 1–3, 17,
165–76, 186, 203–7, 219 18, 26, 27, 30–3, 35, 51, 58, 70,
external themes, 6, 124–6, 156–65, 127, 128, 132, 133, 144, 156,
176–203, 205, 219 166, 191, 194, 196, 203, 226
improving, 4, 7, 183–220, 227 Declaration of Sentiments, 156
internal history, 6, 124–6, 143–50, Declaration of the Rights of Man,
176, 186, 193–7, 219 140, 192
234 INDEX
definition Equal Protection Clause, 67, 78,

analytic, 14–15, 17 172–4
dictionary, 14–17 equal protection, right to, 9, 64, 78,
ostensive, 4, 14, 16–17, 38, 225 143, 188, 190, 213
stipulative, 14, 15, 17, 38 Equal Rights Amendment, 155
democracy Establishment Clause, the,
direct, 168 159, 192
representative, 168 ethics, professional, 5, 95, 102
Democratic-Republican Party, 151, 153 Evolution of American political parties,
Democrats, 153 153
Denver University Law Review, 52 excises, 19
deontology, 96, 98, 99–100 executive branch, 22, 33, 82, 85–90,
de Vogue, Ariane, 82 136, 161, 165, 187, 199, 201
Diamond, Shari Seidman, 109 Ex Parte Bollman, 128
Dienes, C. Thomas, 199 ex post facto, 90, 189
disseised, 104, 132
District of Columbia, et al. v. Heller,
43–46, 48, 49, 64, 152, 164 F
Dorsen, Norman, 198 fallacy of denying the antecedent, 47,
Draco’s code, 168, 194 48
Dred Scott v. Sandford, 25, 29, 110, 159 Falwell, Jerry, 2, 50
due process, 9, 51, 64, 78, 88, 90, Farmers Loan and Trust, 130
91, 141–3, 171–3, 188, 190, Farris, Michael, 13
199, 213, 228 FDLE. See Florida Department of Law
right to, 142 Enforcement (FDLE)
Dunn, Christopher, 158 Federalist Party, 151, 153
Durbin, Dick, 50 Federalist, The, 21, 23, 24, 69, 89,
128, 136, 147, 160, 161, 166,
196, 201
E Felony Murder Rule, 201
Edwards, George, 112 Fifteenth Amendment, 138
egalitarianism, 33, 34 Fifth Amendment, 9, 134, 192
egoism, 96, 97 Finkel, Norman J, 108
Eighteenth Amendment, 121 Finkelman, Paul, 167
Eighth Amendment, 67, 164 Fiorina, Carly, 84
Eleventh Amendment, 162 First Amendment, 9, 32, 67, 79, 107,
Ellsworth, Oliver, 121 110, 111, 119, 120, 131, 159
English Bill of Rights, 23, 168, 169, Florida Department of Law
192, 204 Enforcement (FDLE), 209–11
Enlightenment, the, 206 Foley, Tom, 122
Enmund v. Florida, 201 Fonda, Henry, 106
Epperson v. Arkansas, 159 Ford, Gerald, 69
INDEX 235
Fourteenth Amendment, 9, 25, 67, H

78, 83, 90, 93, 110, 141, Haig, Alexander, 3, 50
151–3, 159, 171–3, 197, 198 Hamilton, Alexander, 21, 69, 89, 121,
Fourth Amendment, 9–12, 38, 129, 147, 161, 166, 195, 196
64, 67, 88, 164, 200, 210, 228 Hammurabi, Code of, 132, 133, 192,
Franco-American Alliance, 203
144 Hampton, Joe, 82
Franke, Katherine, 83 Hanna, Jason, 81
Frank, Jerome, 28 Hans v. Louisiana, 162
Franklin, Benjamin, 32, 121, 144, 196 happiness, pursuit of, 1, 2, 18, 26,
Frantzich, Stephen, 122 30–3, 156
free speech, right to, 23, 32, 110, 159, Haq, Husna, 51
169, 170, 200, 217 Harding, Warren G., 175
French Revolution, 206 Harlan, John Marshall, 157
Friederich, Carl Joachim, 203 Harris, Benjamin, 147
Frishberg, Dave, 219 Harris, Katherine, 173
fundamentalism, biblical, 123 Hart, Melissa, 12, 52
Furman v. Georgia, 170, Haupt v. United States, 128
171 Heller, Dick, 44, 45
Henchman, Joseph, 130
Henry II, King, 134
G Heritage Foundation, 138
Garcia, Christian, 218 Heston, Charlton, 44
George III, King, 32 Hobbes, Thomas, 27, 67, 202, 204
Gerry, Elbridge, 120 Hofman, Darra, 94
Gettysburg Address, 18 Holmes, Oliver Wendell, Jr., 28
Ginsberg, Ruth Bader, 46, Holzer, Harold, 154
174 Hoyt v. Florida, 172
Gitlow v. New York, 152 Huckabee, Mike, 81
Gladstone, William, 37 Hudson v., McMillian, 164
Glossip v. Gross, 165 Human Rights in Ireland, 13
God, 2, 3, 10, 26, 30, 77, 80, 97, Hurtado v. California, 152
110, 144, 149, 156, 191,
201–3, 215
Goesaert v. Cleary, 69, 171, 172 I
Goldberg v. Kelly, 201 Illinois v. Perkins, 162
Graham, A., 80 I’m Just a Bill, 219
Graham, Lindsay, 84 inquisitorial system, 90, 210
Great Compromise, 23, 24, 196 Institutes of the Lawes of England, 134
Greenberg, Morton, 29 integrity, 5, 96, 102, 103, 113,
Gregg v. Georgia, 170, 171 145, 227
Griswold v. Connecticut, 79 intentionalism, 123, 163
236 INDEX
Ira C. Rothgerber Jr. Conference, 52 Kleinig, John, 108, 109

Israel, Josh, 82, 84 Klopfer v. North Carolina, 135
Kopel, David, 48
Kroll, Karen, 183, 184
J
Jackson v. Georgia, 171
Jacobson, Henning, 157 L
Jacobson v. Massachusetts, 157, 198 Langbein, John, 175
Jay, John, 21, 69, 161, 166, 196 law enforcement, 17, 53, 61, 80, 86, 87, 89,
Jefferson, Thomas, 26–8, 50, 51, 69, 123, 126, 134, 176, 185, 209, 211
94, 143, 144, 149–51, 167, 202 law, theories of, 18, 26, 35
Jensen, Erik, 147 lawyer, the, 89, 92, 185, 208, 212, 214
Jim Crow laws, 97 Leadership Conference on Civil and
Jindal, Bobby, 81 Human Rights, 155
Johnson, Andrew, 153 League of Women Voters, 219
judge, the, 23, 28, 90, 91–2, 104, legal positivism, 26, 27, 36
106, 107, 159, 174 legal realism, 26–9, 36, 199
judicial activism, 158, 165 legislative branch, 27, 85, 87, 136, 161
judicial branch, 19, 22, 82, 86, 92, Leland, John, 148
95, 136, 187, 201 Levine, James, 108, 109
judiciary, the, 89–90, 161 Levinson, Sanford, 25
jury nullification, 108, 109 Levy, Leonard, 23
jury, right to, 67, 91, 104, 132, 134, lex talionis, 204
135, 141, 152, 176, 191 libertarianism, 33, 34
jury, the, 104–9, 175, 210 Liberty Bill Act, 183–5, 215, 218,
justice 227, 228
commutative, 33–5, 37, 205 Liberty Counsel Law Firm, 80
distributive, 33–7, 205 Liberty Middle School, 183
legal, 33, 205 liberty, right to, 1, 2, 26, 30–3, 37,
moral, 205 83, 85, 86, 143, 147, 149, 156,
retributive, 33, 35, 37, 205 157, 165, 166, 193
virtue of, 100, 107, 227 life, right to, 30, 31, 33
Limbaugh, Rush, 2, 50
Lincoln, Abraham, 153
K Liptak, Adam, 80, 83
Kalven, Harry, 109 living Constitution, 37, 165
Kant, Immanuel, 99, 100, 204 Locke, John, 26, 27, 67, 68,
Kelly, Debra, 20, 138 202, 204
Kennedy, Anthony, 78, 79, 83 Londras, Fiona de, 13
Kennedy, John F., 200 Loving v. Virginia, 98
King, Nancy, 105 Lumet, Sidney, 106
Kipnis, Kenneth, 90–2 Lupia, Arthur, 218
INDEX 237
M Miranda v. Arizona, 24, 29, 32, 88,

Madison, James, 21, 28, 51, 69, 128, 162, 200 (see also Miranda
129, 136, 144, 147, 161, 168, warning)
195, 196, 198 Miranda warning, 29, 162, 163, 210.
Magna Carta, 11, 23, 104, 132–4, See also Miranda v. Arizona
141, 168, 169, 192, 204 modus ponens, 46–8
Mapp v. Ohio, 200 Monk, Linda, 26, 68, 172,
Marbury v. Madison, 24, 26, 28, 68, 158 175, 201
Marbury, William, 28 Monroe Doctrine, 201
marque and reprisal, letters of, Montesquieu (Charles-Louis de
20, 189 Secondat, Baron de La Bréde et
marriage, same-sex, 2, 78, 82, 83, de Montesquieu ), 89, 204
96–8, 101 Moody v. Daggett, 135
Marshall-Brennan Constitutional Literacy Moral Majority, 2
Project, 12, 13, 52, 94, 216 Morris, Robert, 196
Marshall, John, 26, 28, 66, 152, 158 Mott, Lucretia, 156
Marshall, Thurgood, 37, 163, 171 Mount, Steve, 153–5, 192
Mason, George, 69, 121, 166
Massachusetts Bay Colony Body of
Liberties, 23, 169 N
Massaro, Toni Marie, 5, 13, 93 National Constitution Center, 138
McCoy, Candace, 108, 109 National Federation of Independent
McCulloch v. Maryland, 70 Business v. Sebelius, 130
McDonald v. City of Chicago, 152 National Rifle Association, 44, 48, 49
McNabb, Laura, 52, 216 natural law theory, 26, 27, 35, 204
Meese, Edwin, 158 Nelson, Eric, 111
Meeting of Commissioners to Remedy New Hampshire, vii, 23, 139
the Defects of the Federal New Jersey Plan, 23, 24, 127, 196
Government, 194 Newman, Burton, 48, 49
Menville, Shayla, 78 New York, 1, 7, 21, 23, 34, 35, 129,
Michigan legislature, 216 131, 139, 152, 156, 160, 161,
Milbank, Dana, 50 194, 196, 200, 216, 217
Military Police School, 212 Nicomachean Ethics (Aristotle), 5, 26,
military, the, 3, 33, 45, 129, 185, 208, 27, 95, 100, 102, 105, 203
211, 212 Nineteenth Amendment, 19, 20,
Miller, Cheryl, 216 137, 138, 156
Miller v. Davis, 79 Ninth Amendment, 19, 20
Mill, John, 33 noble savage, 202
Minneapolis & St. Louis R. Co. v. non-originalism, 163, 165
Bombolis, 152 Nozick, Robert, 205
238 INDEX
O positive, 30–2, 36, 52,

Oath on Admission, 212 80, 122
oath to the Constitution, 3, 4, 34, 50, positive rights, 30–32, 36
53, 57, 61, 123, 198, 208, 210, practical wisdom. See prudence, virtue of
212, 215–17, 225, 226 President’s Commission on Law
Obama, Barak, 2, 82 Enforcement and Administration
Obamacare, 130. See also Affordable of Justice, 89
Healthcare for America Act presumption of innocence, viii, 91, 140
Obergefell v. Hodges, 78, 79, 81–4, 98, Printz v. The United States, 142
101, 102 Prohibition. See Eighteenth
O’Connor, Sandra Day, 175 Amendment
originalism, 37, 123, 163–5 property, right to, 34, 68, 83, 132,
Otis, James T., 10–12, 20, 27, 33, 38 143, 202, 205
Owens, Eric, 217 proto-curriculum, 7, 177, 186, 208,
210–12, 214–16, 218, 227, 229
prudence, virtue of, 100, 101, 227
P Public Safety Leadership, Division of,
Palin, Sarah, 2, 50 x, 17, 61, 123
Paterson, William, 196 Publius, 21, 147, 161
Path of Law, The (Holmes), 28 punishment, cruel and unusual, 65,
Payne, Ed, 115, 164, 165, 171, 190, 197
Pearson v. Yewdall, 152
Pelosi, Nancy, 1–3, 50
Perez-Pena, Richard, 80 R
Permanent Apportionment Act of Ragone, Nick, 152
1929, 139 Rakove, Jack, 194
Petition of Right, the, 204 Randolph, Edmund, 195
Phelps-Davis, Rebekah, 111 Raskin, Jamin, 52, 94, 216
Phelps, Fred, 111 R.A.V. v. St. Paul, 25
Phelps-Roper, Shirley, 111 Rawls, John, 205
Pinckney, C. C., 139 Read, George, 196
plea bargains, 91, 214 Reagan, Ronald, 3, 202
Plessy v. Ferguson, 24, 25, 29, 165, 199 Reed v. Reed, 69, 70, 171, 172
Plyer v. Doe, 93 regularianism, 96, 98, 99
police, 4, 9, 24, 29, 30, 32–5, 44, 50, Rehnquist, William, 159
53–8, 71, 87–9, 123, 162, 163, relativism, 96, 102
198–200, 208–10, 212, 214, religion, freedom of, 9, 32, 78, 81, 84,
226, 227 99, 110, 131, 199, 204, 205
Pollock, Charles, 130 Religious Freedom Restoration Act
Pollock v. Farmers’ Loan & Trust (RFRA), 81
Company, 130 Republicans, 52, 153
Porter, G. H, 154 Revenue Act, the (1894), 130
INDEX 239
RFRA. See Religious Freedom self-incrimination, right against, 88,

Restoration Act (RFRA) 162, 210, 214
Rhode Island, 20, 66, 139, 195 Seneca Falls, New York, 1, 2, 156
Rhodes, P. J., 167 separate but equal, 25, 165, 199
Rice, Condoleeza, 50 Seventeenth Amendment, 138, 197
Richards, Leonard, 194 Seventh Amendment, 104
rights Shays, Daniel, 194
conferred, 30, 31, 36, 155, 157 Shays’ rebellion, 194
inalienable/unalienable, 2, 27, Sheppard v. Maxwell, 200
30–2, 36, 51, 156, 228 Sherman, Roger, 196
legal, 5, 25–7, 29, 30, 32, 35, Shestokas, David, 134
36, 78, 79, 83, 91, 93, 102, Shorto, Russell, 205
105, 110, 138, 192, 199, Sidhu, Dawinder S., 95
203, 204, 226 Silversmith, Jol, 154
moral, 5, 26, 29, 30, 32, 35, 79, 84, Singer, Peter, 30
95, 102, 104, 105, 113, 201, Sixteenth Amendment, 129, 130, 139, 140
202, 205, 226 Sixth Amendment, 23, 32, 67, 88, 93,
negative, 30–2, 36, 137 104, 132, 134, 135, 141, 210
Roberts, John, 51, 71, 82, 110 Slavery Amendment, 154, 189
Roe v. Wade, 25, 31, 32, 79 Smith. George F., 215
Roman Catholicism, 26, 27 Snyder v. Phelps, 110
Roman Republic, 168, 192, 203 social contract theory, 27, 202, 203
Rousseau, Jean-Jacques, 202–4 so help me God, 3, 77, 215
Royal, K, 52, 94 Solon’s code, 168
Somin, Ilya, 6, 51, 53, 94
Sons of Liberty, 11
S Souter, David, 46, 174
same-sex couples, 78, 79, 82, 96, Spanish-American War, 201
98, 101 speech, freedom of, 9, 15, 23, 25, 32,
Sanders, Bernie, 112 78, 107, 110, 152, 159, 169,
Sauls, N. Sanders, 173, 174 170, 200, 217
Scalia, Antonin, 37, 45, 46, 83, 159, Speedy Trial Act of 1974, 135
164, 165, 198 speedy trial, right to, 88, 134–6
Scheflin, A., 108, 109 Stamp Act of 1765, 67
Scherer, Michael, 51, 228 Stanton, Elizabeth Cady, 156
Schmitt, Gary, 216 state action, 68, 157, 198, 199, 213
Schmoop Editorial Team, 144 state of nature, 67, 202
School House Rock, 219 States v. Miller, 45
Schrader, David, 90 Stevens, John Paul, 45, 46, 135, 142, 174
Second Amendment, 9, 23, 31, Stivers, Robert, 82
43–9, 64, 152, 162, 164, 193, Story, Joseph, 24
228 Strauss, Betsy, 13
240 INDEX
Strauss, David, 165 treason

strict constructionism, 29, 163, 164 high, 128
subjectivism, 97, 98 petty, 128
succession, presidential, 3, 50, 188 Treason Act of 1695 (England), 128
Supreme Court, Florida, 173, 174 Treaty of Paris, 65, 130, 144
Supreme Court, New Jersey, 199 Treaty with the Bey of Tripoli, 65,
Supreme Court, United States, 4, 11, 130, 131, 150
21, 23–5, 28, 31, 34, 37, 44, 45, Trop v. Dulles, 65
49, 51, 61, 71, 78–82, 84, 93, 97, Trotter, Griffin, 85
98, 101, 109, 110, 119, 122, 128, Trump, Donald, 84
130, 131, 135, 136, 141, 142, truths, self-evident, 1, 2, 18,
151, 152, 157, 159, 162, 165, 26, 30, 156
191, 193, 198, 213, 217, 225 Tushnet, Mark, 12, 13, 52
sworn officials, 3–5, 7, 11, 17, 51, 53, Twelfth Amendment, 66, 119, 150,
61, 70, 84, 87, 89, 92, 95, 102, 151, 197
103, 127, 168, 215, 226 12 Angry Men, 106
Twenty-fifth Amendment, 3
Twenty-fourth Amendment, 138
T Twenty-seventh Amendment, 29,
Taney, Roger, 110 109, 119, 122, 127, 133, 143,
tax 166, 197
direct, 129, 130, 146, 188–90, 194 Twenty-sixth Amendment, 138
indirect, 129 Twenty-third Amendment, 138
taxation without representation, 11, 191 Two Concepts of Liberty (Berlin), 31
Taylor, Stuart, 37
Teaching Tours, 184
temperance, virtue of, 100, 101, 227 U
Terry v. Ohio, 24, 88, 200 United States Army, 19, 211, 212
textualism, 123, 163 United States Captiol Police, 87
The More You Know, 219 United States Census Bureau, 139
Third Amendment, 18 United States Citizenship and
Thirteenth Amendment, 19 Immigration Services, 215
Thomas Aquinas, 26, 204 United States Internal Revenue
Thomas, Clarence, 83, 164 Service, 129
Three-fifths Compromise, 146, 147, United States National Archives, 122, 151
192, 196 United States Office of Personnel
Time magazine, 51, 112, 228 Management, 201
Tocqueville, Alexis de, 97 United States v. Cruikshank, 152
Toobin, Jeffrey, 173–5 United States v. Eichman, 200
Toutant, Charles, 199 United States v Nixon, 201
Townshend Acts, 11 Universal Declaration of Human
traffic laws, 199 Rights, 141, 192
INDEX 241
University of Baltimore Law School, Waters, Jessica, 52, 94

213 Watson, Alan, 140
unreasonable search and seizure, Watson, Gregory, 122
freedom from, 9, 64, 67, 78, 88, Westboro Baptist Church, 110
190 Westside Community Schools v.
Urofsky, Melvin, 37 Mergens, 68
utilitarianism, 33, 34, 96, 97 We the People Congress, 168
We the People Program, 12, 13
Whitman, James, 91
V Williamson, Hugh, 121
Vice President of the United States, 3, 85, Wills, Garry, 147
86, 150, 151, 155, 187, 188 Wilson, Don W, 122
Virginia Declaration of Rights, 135, Wilson, James, 144, 196
141 Wilson-Gorman Tariff. See Revenue
Virginia Plan, 23, 24, Act, the
195, 196 Winthrop, Jonathan, 201
virtue, 5, 27, 95, 96, 100, 102, 107, Wisconsin v. Mitchell, 200
113, 227 Wong Wing v. U. S., 93
virtue theory, 27, 96, 100, 102, 109 Wright, Randy, 183, 184
Volokh, Eugene, 81 writs of assistance, 9–12, 20, 27,
voting, 3, 4, 11, 38, 83, 93, 94, 103, 33, 38
138, 188, 218, 225 Wynn, Mike, 80
Voting Rights Act of 1965, 138 Wythe, George, 94
W Y
Waite, Sharon, 122 Yick Wo v. Hopkins, 93
Wallace, George, 112 Young, Ernest, 165
Ward, Paula, 91
Warren, Earl, 135
Washington D.C. Voting Rights Z
Amendment, 155 Zadrydas v. Davis, 142
Washington, George, 37, 66, 69, Zedner v. United States, 135
150, 166, 195, 197, 201, 215 Zeisel, Hans, 109
Washington School of Law, 94 Zicarelli v. Dietz, 152

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CONSTITUTIONAL

ISBN 978-1-137-56798-7 ISBN 978-1-137-56799-4 (eBook)

Library of Congress Control Number: 2016950640

© The Editor(s) (if applicable) and The Author(s) 2016

Cover image: © D. Hurst / Alamy Stock Photo

Printed on acid-free paper

This Palgrave Macmillan imprint is published by Springer Nature

The US Constitution matters. As the “supreme law of the land,” the

2 The Nature of Constitutional Literacy 9

3 The Lack of Constitutional Literacy 43

4 The Value of Constitutional Literacy 77

5 Assessing Constitutional Literacy 119

6 Improving Constitutional Literacy 183

On November 5, 2009, John Boehner (R-OH), Minority Leader of the US

Boehner, encouraging participants to demand their constitutional right to

© The Editor(s) (if applicable) and The Author(s) 2016 1

We believe that the preamble to the Constitution contains an inarguable truth

In 2010, Sarah Palin (2010), former US Vice Presidential candidate

obligation freely, without any mental reservation or purpose of evasion; and

At the Republican rally, Boehner noted his 19 years of public service; at

Constitutionally, gentlemen, you have the President, the Vice President,

Under the 25th Amendment, ratified in 1967, the order of succession

The lack of constitutional literacy where it should not be lacking is easy

of professional ethics in particular. Good moral character is virtue. Virtue,

• Requiring Reading the Constitution Only

Category II: Internal history

• Pre-Ratification (before 1787)

Category III: External Themes

• Directly Relevant to the Constitution

Category IV: External history

– Directly Relevant to the Constitution

URL for video: http://images2.americanprogress.org/CAP/2013/09/

The Nature of Constitutional Literacy

INTRODUCTION: WRITS OF ASSISTANCE AND THE 4TH

Knowledge of what this Amendment says indicates constitutional liter-

© The Editor(s) (if applicable) and The Author(s) 2016 9

A key moment in the genesis of the 4th Amendment occurred in

Otis acknowledged that such writs were acceptable in ancient English

THE NATURE OF CONSTITUTIONAL LITERACY

This basic definition of constitutional literacy may be too simple. As

The Marshall-Brennan Constitutional Literacy Project puts laws students

Toni Massaro (1993) regards constitutional literacy as the general lit-

Deciding among these and other possible definitions of constitutional

Four Types of Definition

1a: a globose berry with a yellowish to reddish-orange rind and a sweet

Defining constitutional literacy is more like defining an orange than like

1. Of or relating to a constitution: a constitutional amendment.

3. Established by or operating under a constitution: a constitutional

And “literacy” thus:

1. The condition or quality of being literate, especially the ability to read

We have decided that neither an analytic definition of constitutional

Eight Levels of Constitutional Literacy

• Which Article is about the judicial branch?

• The Constitution gives Congress the power to grant Letters of Marque

• Was the express purpose of the Constitutional Convention to replace the

(a) Introduction (1)

1. Dangers facing the United States (2–14)

a. Foreign Dangers (2–5)

2. Problems with Confederacy (15–22)

(c) Power Needed (23–36)

(d) Drafting the Constitution (37–51)

1. The Convention (37–40)

(a) Objections (37–38)