The real constitutional crisis: We forgot what it means to be an American

The U.S. Supreme Court’s 2019-2020 term began this week in what is generally agreed to be an atmosphere of constitutional crisis. That crisis has nothing to do, however, with the cases currently on the court’s docket. 

The court’s term presents, ironically enough, as a constitutional sideshow to the impeachment-related activity under way in the House and the investigation of the U.S. intelligence community being conducted by the executive branch itself, with the sought-after assistance of foreign governments. No doubt those inter-branch and inter-party disputes eventually will be confided to the court for resolution, the hope being that the justices will overcome their partisan backgrounds and emerge as the “adults in the room.” 

But this inter-branch and inter-party animus — and the refereeing sure to be conducted by the court — are but symptoms of the greater crisis of our constitutional order: our vast public ignorance. 

Surveys have borne out that many, if not most, Americans have no idea how our government is structured, how it supposed to work, and what it requires of us as citizens.    

Polling conducted by the Annenberg Foundation and Xavier University has revealed, for example, that nearly half of adult Americans cannot pass the basic test — the test passed by more than 90 percent of immigrants — given to aspiring citizens. Worse, American citizens seem to demonstrate their greatest ignorance about the basics of the American political system. Eighty-five percent have no idea what the “rule of law” is. Well OK, you might say, that concept seems to confuse even our president.

But it gets worse. Some two-thirds do not know there are three branches of government. And 71 percent of American adult citizens do not know that our Constitution is the source of supreme law in the United States.   

The dire implications of this vast public ignorance are embedded in the very structure of our Constitution. The document created by the Founders, and ratified with 10 amendments known as the Bill of Rights, is shot through with compromise. The interests of smaller states were protected by creating a Senate where states held equal voting power regardless of size. The interests of popular sovereignty were protected by creating a House of Representatives apportioned according to population.    

The need for an executive was satisfied by creating a President of the United States, who was vested with the power to serve as commander-in-chief of the armed forces, to negotiate treaties and appoint ambassadors to foreign nations, and otherwise run the government, enforcing the laws that Congress passed and he or she signed and did not veto. 

Concerns about the scope of presidential power were addressed by allowing Congress to override a presidential veto and by reposing in Congress, rather than the president, the power to declare war, by providing for Senate ratification of treaties and by providing for senatorial “advise and consent” on critical presidential appointees.

Here’s the point: Such a structure requires accommodation of opposing views or it will collapse; compromise is its DNA.

If the method was compromise, the underlying principle was a healthy distrust of concentrated power. Politics attracts many good people; it also, however, attracts creatures of unbounded appetites, who never will be satisfied with the power they have at any given moment. They will lust for more and, therefore, the Founders concluded, they must be stopped. Accordingly, the U.S. Constitution is designed above all to frustrate the untrammeled exercise of power.

But that’s the truly alarming part of our current climate of ignorance. If some 70 percent of American citizens don’t know there are three branches of government, it’s a sure bet they can’t tell us why power was so divided. If they can’t identify the Constitution as our supreme law, what hope is there that they will understand the mistrust of concentrated power that underlies its structure, or the necessity for dialogue and compromise inherent in our system’s very design?      

Absent that understanding, our system of checks and balances has come to many to seem self-defeating, and the emergence of an apparent “strongman” is becoming dangerously alluring. 

The mere existence of rival political parties has come to seem illegitimate; hence, the repeated crises of legitimacy since the end of the Cold War, from the impeachment of Bill Clinton to Bush v. Gore, from the “birther” movement to repeated government shutdowns to the current climate of partisan and inter-branch stalemate.

Most disturbing, absent that basic understanding of the necessity for accommodation of opposing views, compromise has died in our culture as a virtue. Our freedoms have become unmoored from any sense of civic responsibility and indistinguishable, therefore, from our appetites. Consider this:

• Our resistance to restraints on our economic appetites nearly caused the world economy to collapse — twice.
• Our resistance to any limits on the right to carry firearms has flooded our country with 300 million weapons; mass shootings have become appallingly routine.
• Our resistance to any limits on speech has led to the normalization of pornography, with its exploitation of women and children.
• Our equation of spending with speech has led to a political arena in which a rich person’s or corporation’s “speech” is necessarily valued more highly than an average or poor person’s speech.
• Cable news and social media have become engines of extremism, a wasteland in which the pressure always to have something to say — and to say something extreme enough to drive up audience share and, with it, profits — acts as an accelerant to any public argument, driving people further apart.  

In short, as a society we have become not fulfilled but deformed by the excesses of our appetites. 

Seen in this light, President Trump is the walking, talking, tweeting proof that, ultimately, our politics cannot be separated from a culture grounded in ignorance of our basic values, a culture that has substituted unrestrained appetites for ordered liberty.

As the court begins its term this week, we should pause and remind ourselves that the survival of our form of government is not written in the stars, or even in the Constitution. It is embedded, or it should be, in our culture, in a shared understanding of what it means to be an American. But it is precisely this wisdom of the Framers — that because republics are fragile, compromise is essential — whose disappearance from our culture and politics is reflected so starkly in the survey numbers and in post-Cold War American culture. 

Beyond the noise of our moment, that — our collective ignorance — is our greatest constitutional crisis.   

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.