Constitutional Law as Civic Education
We are awash in concerns that our political institutions are failing, and that our political and cultural divisions dwarf what we share in common. In the face of our seemingly implacable differences, we are witnessing calls to arms for "conclusive victory" in our "cold civil war," and even threats of something hotter. Concern for the future of the American union is not overwrought. America has faced more serious divisions in the past — after all, we did have an actual civil war — but we should not presume the inevitable endurance of the American experiment. Political orders are finite entities; historically speaking, the American experiment is bound to come to an end.
Yet perhaps America's constitutional history can forestall the inevitable. Perhaps American constitutional law can help us rediscover the political principles we share in common and set the bounds of our disagreements. It's an odd thought in this dyspeptic era, but our conflicts may offer an opportunity to engage the citizenry in constitutional education. After all, polarized as we are, the one thing we share in common (if surveys are to be believed) is our ignorance of the Constitution.
Complaints of civic ignorance are as old as the Republic. Writing in the months just before the Constitutional Convention of 1787, Noah Webster bemoaned the fact that Americans didn't know their history. It was in our history, Webster insisted, that we would discover our political principles and forge a common identity. Neglecting our history, we lacked knowledge of ourselves as Americans.
Our constitutional history can offer instruction on basic civic knowledge, such as the three branches of government within the separation of powers, which three quarters of Americans cannot name. But much more than basic knowledge, turning to our constitutional history is a way to reanimate the principles we share in common and forge a common civic identity. American constitutional principles have come to life over the course of our history as we have wrestled with how to apply enduring ideals in new cases and contexts.
"We the people" set the Constitution in motion over two centuries ago, but maintaining the order it established will require the participation of new generations. We can recover our constitutional history by revisiting the court cases that force us to answer difficult questions about how our Constitution and its institutions are supposed to interact. This not only offers us a civics lesson that doubles as active engagement with constitutional institutions and principles; it also shows us that the Constitution's future will depend on citizens today.
CONSTITUTIONAL STRUGGLES OVER CIVIC IDENTITY
American constitutional law is no less than an extended commentary on the meaning of America taught as part of a liberal and civic education. As Yale Law professor Bruce Ackerman puts it, "To discover the Constitution is to discover an important part of oneself — insofar as one recognizes oneself as an American." Americans share a common history more than anything else. Understanding our history requires not just knowledge of the past, but an understanding of the political principles that underlie that history and the Constitution itself. By focusing on the historical development of American constitutional law, we can use our shared history to begin rediscovering shared principles.
Yet we begin in division. Rather than turning first to constitutional institutions, let us start with we the people. It's here that we can see most clearly the struggles over the constitutional values and principles that our political institutions were meant to protect. And it is here, too, that we can see the things we must agree on.
If Americans tend to follow Abraham Lincoln in thinking that the nation was "conceived in Liberty" and "dedicated to the proposition that all men are created equal," we should notice that the first clear command for equality in the Constitution comes by way of an amendment ratified in 1868, some seven decades after the Constitution itself was ratified. Just who was included in we the people was contested for much of our history. Constitutional provisions like Article I, Section 9's prohibition on titles of nobility and Article IV's "full faith and credit" clause were suggestive of the Declaration of Independence's pronouncement of political equality. Yet like citizenship, equality occupied an uncertain place in the antebellum constitutional order prior to the ratification of the 14th Amendment.
Ratified in 1868, the 14th Amendment first made citizens of all persons born in the United States and subject to its jurisdiction. This was almost certainly a response to the infamous Dred Scott decision of 1857, where the Court held that blacks, enslaved or free, were constitutionally speaking "a subordinate and inferior class of beings...so far inferior that they had no rights which the white man was bound to respect."
The 14th Amendment not only made blacks born in the United States citizens, but it prohibited the states from abridging the "privileges or immunities" of citizenship, guaranteeing all citizens the equal rights — like the right to bring suit in court — that Dred Scott was denied because of his race. The amendment, however, continues with an interesting distinction. Moving beyond citizenship and the rights that attach to it, it then prohibits the states from denying any person life, liberty, or property without due process of law and similarly prohibits the states from denying any person the equal protection of the laws. The due-process and equal-protection clauses can be seen to embrace Lincoln's notion of both equality and liberty as articulated in his Gettysburg Address, which framed his understanding of the Constitution. But even if we agree on these twin principles of the American Constitution, just what they entail and how they ought to be applied has been the source of deep disagreement, much as we disagreed over just who could be a citizen.
Consider Frederick Douglass's argument, in the years before the Civil War, that slavery had mastered the Constitution: Freedom of speech and the press were subverted to protect slavery. Postmasters in several states refused to accept or deliver abolitionist literature, and numerous Southern states forbade criticism of slavery or teaching blacks — free or enslaved — to read and write. What's more, Douglass insisted that a republican form of government, as found in Article IV, Section 4 of the Constitution, prohibited such distinctions: "Whatever may be tolerated in monarchical and despotic governments, no republic is safe that tolerates a privileged class, or denies to any of its citizens equal rights and equal means to maintain them."
Reasoning like Douglass's helped frame the Civil War amendments as central to completing the Constitution. Was Douglass part of we the people? He voted in Massachusetts and acted to shape our constitutional understandings, making many of the critical arguments about the underlying principles of the Constitution with regard to human equality that Lincoln would later so sublimely express. But if we follow American constitutional law and the Dred Scott decision, Douglass was not only not a citizen, but exercised his liberty at the forbearance of the people of Massachusetts and New York. Constitutionally speaking, he had no rights anyone was bound to respect. Against this backdrop, Douglass spoke of the "new birth of freedom" (in Lincoln's immortal words) offered by the Civil War amendments. They overturned — abolished, we might say — the idea that blacks were not citizens and had no rights according to the Constitution: "The Fourteenth Amendment makes him a citizen, and the Fifteenth Amendment makes him a voter."
But history was not so simple. The nation soon began a retreat from the promise of racial equality that the Court tragically ratified in Plessy v. Ferguson in 1896, holding that "separate, but equal" was constitutionally permissible. The franchise, too, was denied to African-Americans. Against this backdrop, Douglass criticized the Court for defeating "the manifest purpose of the Constitution, nullifying the Fourteenth Amendment, and placing itself on the side of prejudice, proscription, and persecution."
Was all of this consistent with the intention of those who framed and ratified the Civil War amendments? Should we be bound by that intention? This is precisely the question in Brown v. Board of Education, decided in 1954. There the Court had to decide whether racial segregation in public schools was consistent with the 14th Amendment's command that no state shall deny a person the equal protection of the laws. This may seem like an easy case, but we would benefit from studying the constitutional struggle around racial equality. While the Court found that in the field of public education segregation is unconstitutional, there was deep resistance. In the "Southern Manifesto" of 1956, a number of Southern members of Congress and Southern states pledged to bring about a reversal of the Brown decision, insisting it was constitutionally unjustified and went against nearly a century of Supreme Court precedent.
Today, our understanding of the Constitution owes more to Douglass than it does to Roger Taney, chief justice and author of the Dred Scott decision. But we should not take this for granted; it required a profound and ugly struggle over the soul of the nation. Progressives are too prone to root America in slavery itself: When they say the country was founded in 1619 and not 1776, they neglect the fact that, in the hands of Douglass and Lincoln, 1776 became a way to attack the legacy of slavery and racism as inconsistent with a creedal understanding of American constitutionalism. Douglass demanded that America live up to its own ideals. Conservatives would do well to remember that when William F. Buckley in 1955 launched the modern conservative movement by insisting he would stand athwart history and yell "stop," one of the central things he would have stopped was the civil-rights movement — not for refined reasons of constitutional law, but to maintain the Southern way of life, which just happened to include racial apartheid.
Canvassing our history by way of constitutional struggles, beginning with the debates over ratification that helped bring us the Bill of Rights, we can come to understand the very real struggles over the meaning of America. And we can see, too, the importance of ordinary citizens in shaping the idea of America. It is ultimately American citizens — and those who attach themselves to America by becoming citizens — who carry the American constitutional project forward.
We can agree with Douglass that, if we are committed to human equality, citizenship must be understood in civic terms and not in terms of race or ethnicity. But knowing this history and working through the constitutional reasoning of cases like Plessy and Brown remains a useful exercise. In a small way, incongruous details can challenge our assumptions. The ugly Plessy opinion was authored by Justice Henry Brown from Massachusetts who was educated at Yale and Harvard Law School. The eloquent dissent we would rather remember was authored by Justice John Marshall Harlan, a former slaveholder from Kentucky who initially opposed the Reconstruction era amendments, but became the most powerful advocate for the 14th Amendment's promise on the Supreme Court.
On a larger scale, recounting these constitutional struggles helps us understand how the struggle over civic identity and racial and ethnic discrimination has been a very real part of American history. Knowing this history helps us become more fully American. Becoming an American means embracing the exalted dimensions of our national character as articulated by Lincoln and Douglass; it also means not just acknowledging but understanding the awful incidents of racial, ethnic, and religious discrimination permitted and at times committed by our formal institutions.
It also forces us to confront other distinctions. Could the state of Illinois, for example, deny Myra Bradwell a license to practice law precisely because she was a woman? Is it constitutionally permissible to base such judgments on "divine ordinance," or, in the words of Justice Joseph Bradley in Bradwell v. Illinois (1873), on the notion that "the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life"? The Court held that Illinois could make such distinctions. Despite the advocacy of Susan B. Anthony and Elizabeth Cady Stanton, whose readings of the Constitution from the 19th century remain powerful today, the 19th Amendment did not give women the right to vote until 1920 (even if Myra Bradwell was admitted to the bar in 1890).
Ending sex discrimination has been a constitutional struggle. Justice Ruth Bader Ginsburg, as a lawyer in the 1970s, began to push the Court — and the country — to prohibit many forms of discrimination on the basis of sex. But even accepting a general principle of equality, there remain important disagreements. Was Justice Ginsburg right in United States v. Virginia, when she wrote for the Court requiring that the Virginia Military Institute admit female students? Virginia, Ginsburg reasoned, could not offer one sort of education for its sons at a public institution like VMI, while offering nothing similar for its daughters. Did it matter that VMI had been an all-male institution for well over a century?
We must continue to wrestle with what sorts of distinctions are constitutionally permissible, but we can do so from a common commitment to constitutional equality. Revisiting our constitutional history forces us to understand that equality is something we have striven to achieve by way of struggles over civic identity and belonging. These struggles have helped us to better understand constitutional principles like equality, and they have been a central feature of constitutional self-government in America.
DEMOCRACY, RIGHTS, AND CONSTITUTIONAL STRUCTURE
The same year the Court decided Bradwell, the Comstock Laws — a series of acts for the suppression of trade in, and circulation of, obscene literature and articles of immoral use — prohibited the promotion of literature on contraception as part of an effort to suppress immoral activity like premarital sex. Connecticut passed a similar law that prohibited not only exchanging information regarding contraception, but the sale and use of contraception. Was the law aimed at protecting a male-dominated workplace from women, who with the aid of contraception could put off having children to further their careers? Was it rooted in religious teaching? Was it a secular effort to draw a clear connection between marriage and procreation? If so, could it apply to married couples?
In Griswold v. Connecticut, in 1965, the complete prohibition of contraception was challenged as it applied to married couples. Writing for the Court, Justice William Douglas struck the prohibition down, insisting that we "deal with a right of privacy older than the Bill of Rights." More important, Douglas turned to various textual provisions in the Bill of Rights — such as the Third Amendment's prohibition against quartering soldiers in a time of peace and the Fourth Amendment's prohibition on unreasonable searches — as creating zones of privacy that radiated from the "penumbras" in specific textual guarantees. In other words, specific guarantees in the Bill of Rights suggested the projection of personal privacy. Douglas's close friend and fellow Roosevelt appointee, Justice Hugo Black, thought this utter nonsense. In a vigorous dissent, Black insisted, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."
Black argued that only those rights clearly enumerated in the Bill of Rights, such as freedom of speech and religion in the First Amendment, were constitutionally protected. Even more, he insisted that the "privileges or immunities" clause of the 14th Amendment referred only to these rights, and that the same held for the liberty protected by due process in the 14th Amendment.
If we accept Black's logic, does this mean parents don't have a right to send their children to a private religious school? This was at issue in the 1925 case Pierce v. Society of Sisters, where the state of Oregon required compulsory education in public school for children between the ages of eight and 16. In Griswold, Justice Douglas drew on Pierce as an example of private choice where the Court recognized under the 14th Amendment "the liberty of parents and guardians to direct the upbringing and education of children."
The Court recognized the states' interest in educating and nurturing children — particularly in preparing them for citizenship — but insisted this could not preclude private education and instruction. While Pierce dealt with religious education, the Court did not confine its opinion to religious liberty, which could be protected by the First Amendment. Indeed, it rested its opinion on Meyer v. Nebraska from 1923, in which the Court rejected a law forbidding the teaching of German as an infringement on liberty. Do these cases capture the constitutional understanding of liberty? Does the liberty the Court recognized, which included a right to choose with regard to thought and education, extend to contraception and other choices about procreation? What about choice with regard to occupation?
The purpose of this discussion is not to jump from case to case with a spiraling set of questions, but to show how beginning with a single case inevitably leads to questions that necessarily draw us to other cases and controversies. Speaking to the particulars of cases, we can begin to build more general understandings of liberty and equality as constitutional principles. We are certain to disagree on many particulars. But our disagreements can then be framed in terms of agreement on general constitutional principles, even while disagreeing on their application.
Intimately related to questions of constitutional rights is our understanding of the different branches of government and the division of power between states and nation. Justice Black's rejection of judicial protection for unenumerated rights like "privacy," for example, rested on his understanding of the proper scope of legislative and judicial power. He believed that judges should defer to the democratically elected legislature unless the Constitution specifically commanded otherwise by textually enumerating a right. In these cases, Black argued, the people themselves had protected their rights against popular majorities by enumerating them in a Bill of Rights. This move commanded the judiciary to protect these specifically enumerated rights. But otherwise, allowing judges to second guess the legislature based on claims to unenumerated rights would invite judicial lawmaking based on the subjective political and moral preferences of the judges.
Black's position has not gone unchallenged. Other jurists have insisted it is precisely the job of the judiciary to police the boundaries of legislative and executive power. This necessarily includes protecting so-called unenumerated rights. Or, more precisely, jurists like Justice Stephen Field insist that the constitutional text itself points to the protection of unenumerated rights: specifically, the 14th Amendment's protection of the "privileges or immunities" of citizenship, as well as its protection of liberty under the due-process clause. Field argued that liberties like choice of occupation were protected by the Constitution even if they were not specifically named. Others have pointed to the Ninth Amendment's injunction that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
We can trace this argument back to Alexander Hamilton's insistence in Federalist No. 84 that the Constitution did not need a bill of rights because it granted only a limited amount of power to the government. Hamilton argued that enumerating powers implied that rights would not be enumerated, but would be protected by the enumeration of powers. Like Hamilton, James Wilson — a leading member of the Constitutional Convention and afterward a Supreme Court justice — insisted that, in a government derived from the people, we should presume that all rights are retained.
This line of argument suggests that, rather than place the burden on the individual to justify a right, we properly place the burden on the government to justify its exercise of power, to prove that it is genuinely connected to a legitimate public purpose. A variation of this is taken from Chief Justice John Marshall's insistence in McCulloch v. Maryland (1819), that if the government "in the execution of its powers, adopt[s] measures which are prohibited by the constitution...under the pretext of executing its powers, pass[es] laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal...to say, that such an act was not the law of the land."
However we come at this issue, we must consider what sort of judicial scrutiny should apply to acts of the legislature and executive. The legislature may have perfectly plausible reasons for its actions. This raises profound questions for our understanding of our political institutions and the nature of American constitutional democracy. As citizens we need to consider whether we should accept the legislature at its word or whether courts should apply a more exacting standard of judicial scrutiny to the laws and executive actions before them. Should courts always defer to the democratic branches? Should they always view legislation and executive action with a raised eyebrow, so to speak? Or should their skepticism be selective?
This question comes up in almost every constitutional case. The Affordable Care Act was put forward in 2010 as a regulation of interstate commerce, President Trump's travel ban in 2017 as furthering national security, and numerous states' prohibition of same-sex marriage early in this century as a regulation of procreation. Each one of these was a plausible regulation on its face. And yet nearly everyone thinks that in at least one of these cases, the judiciary should not simply defer to the political branches. So on what basis should the judiciary act to overturn laws passed by the legislature? Only when it comes to categorization on the basis of race and ethnicity? Only when a clearly enumerated constitutional right is at issue? When it endangers the democratic process? When the federal government may have overstepped its bounds and intruded on power reserved to the states? In all of these cases?
Such questions necessarily implicate the Constitution's separation of powers. While the phrase itself is not used in the Constitution, it is immediately obvious that the Constitution's first three articles speak to the three branches of government. Article I outlines the structure of the legislature, Article II the executive, and Article III the judiciary. And Article IV speaks to relations between the nation and the states.
CONSTITUTIONAL KNOWLEDGE
By way of constitutional law, then, we will also come to understand the details of our Constitution. In 1952, in the midst of the Korean War, President Harry Truman seized the nation's steel mills to keep them running to supply munitions to the war effort. Truman insisted he could do this as part of his power as Commander in Chief of the armed forces during an active conflict. He also relied on "the executive Power" granted to him by Article II of the Constitution. The president is also commanded to "take Care that the Laws be faithfully executed," and he is made "Commander in Chief of the Army and Navy of the United States." Does it follow that it was within Truman's power to seize steel mills in Ohio in order to sustain the war in Korea?
In Youngstown Sheet and Tube Co. v. Sawyer, the Court found that President Truman had overreached: Neither the executive-power nor the Commander in Chief clause authorized the president to seize property in Ohio, far outside of the active war zone. Worse, Congress had contemplated giving the president the power to intervene in labor disputes, which was what threatened to halt steel production, and it had declined to do so. In other words, Congress had seemingly considered giving the president this sort of power by statute and had declined. While Congress had appropriated funds for the war, which was essential under Article I of the Constitution, the Court declined to read this as approval of every aspect of the war effort itself.
It may be surprising to learn that legislatures and presidents have been central to American constitutional development. We tend to give an outsized role to the Supreme Court, as our deeply divisive confirmation hearings have shown, but the Court is only one player in our larger constitutional scheme. It was Lincoln who led the charge for Congress to secure the 13th Amendment, which abolished slavery — making the Union he had helped save "worthy of the saving." Shortly after passage of the 14th Amendment, it was Congress that sought to secure the rights of black Americans with the Civil Rights Act of 1875 against the resurgence of "black codes," and it was the Supreme Court that restricted the scope of the amendment. It was Congress, under the leadership of President Lyndon Johnson, that passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965 as part of what has been dubbed "the second reconstruction."
States, too, have played an important role. Much of our modern understanding of freedom of speech comes from Southern states — Virginia and Kentucky under the respective leadership of James Madison and Thomas Jefferson — criticizing the federal government's passage of the Sedition Act of 1798. The act, according to Madison, "criminalized differences of political opinion," which was resisted by states and throughout civil society. In the run up to the Civil War, several states passed "liberty laws" to ensure that free blacks were not mistakenly detained or captured as "slaves" under the Fugitive Slave Act of 1850. Was this state resistance to federal law? Or was it an effort to ensure due process to individuals lawfully within the state? Such issues came up in cases like Ableman v. Booth in 1859.
We continue to think about the proper balance between the states and the federal government. But against the backdrop of our constitutional history, we get a more nuanced understanding of federalism. This new understanding does not easily line up with current partisan attachments and could help us appreciate federalism's virtues as well as its shortcomings.
TEACHING DISAGREEMENT
However much we know about the Constitution, we are going to disagree with one another, often profoundly. That's the nature of constitutional government. It may even be that the more we know about the Constitution, the more likely we are to disagree. Yet the Constitution can help set the boundaries of such disagreement. And constitutional law helps provide a model of disagreement. The opinions of the Court offer reasons for its decisions, while concurring and dissenting opinions challenge the decisions of the Court. Read together, they offer a powerful and extended dialogue on the Constitution — on the very idea of America. At one point or another, it is almost always the case that students find themselves persuaded by justices they may not generally agree with. Working through the different constitutional cases reveals that they rarely track neat ideological divisions, and often tend to break them down. We are also likely to find that, even when we agree with the result in a particular case, we frequently disagree with the Court's reasoning and logic.
It's an exercise in citizenship to think through constitutional questions on our own. Indeed, it forces us to think about how we should order and weigh different, and often competing, constitutional values and principles. And as we think about how to apply the Constitution to contemporary issues, it is striking just how much gray area there is. Thinking through such issues requires us to exercise our reason and judgment, but also to acknowledge that the answers we find are not so easily or neatly arrived at. Judgments other than are own are certain to be reasonable, as there is obvious room for disagreement.
The 2013 voting-rights case, Shelby County v. Holder, offers a good recent example. Justice Ginsburg argued that given the history of discriminatory voting procedures — particularly against African-Americans in many Southern states — the Court ought to give wide latitude to Congress in its efforts to protect minority voting rights. In doing so, she urged the Court to defer to Congress's information gathering and past record in eliminating race-based discrimination in voting, which had plagued the democratic process. The Court, in an opinion by Chief Justice John Roberts, argued that on the basis of "principles of federalism," Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50 years ago or more, Congress should not treat states differently in this regard without recent evidence of discriminatory voting practices on the part of particular states.
Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, noting the Court should not overturn an act of Congress lightly. But it was unconstitutional, he argued, to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.
Like Justice Ginsburg's judgment, the Chief Justice's judgment was rooted in how he understood voting rights, relations between the states and the national government, and the Court's role in the constitutional scheme. Neither justice simply turned to the constitutional text. Rather, based on different textual provisions, an examination of history, and a weighing of constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave particular constitutional principles. Justice Ginsburg prioritized voting in light of a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting. We can disagree with these respective constitutional judgments, yet even while disagreeing we can understand that, as with many of our most pressing disagreements, they take place within the confines of the American constitutional order.
A CALL TO CONSTITUTIONAL LAW
But how can we expect citizens to understand the Constitution and the logic behind the American constitutional order when we spend so little time teaching it? How can we expect citizens to be attached to constitutional democracy when we do not educate them to that end? Given our neglect of history, it should come as no surprise that many citizens — including those who happen to hold high office — do not understand how freighted a term like "blood and soil" is. Nor should it surprise us that a majority of Americans think that non-citizens have no rights under the Constitution — even though the 14th Amendment guarantees due process and equal protection to all persons.
Knowing this history, and specifically what the 14th Amendment entails, can help inform and frame the boundaries of our contemporary disagreements. There are important distinctions between citizens and non-citizens. And yet non-citizens are still entitled to due process and equal protection. At the same time, treating citizens differently than non-citizens is in many cases perfectly consistent with equal protection and due process. How we draw these boundaries and differences will be the subject of intense political disagreement. But it can be informed disagreement. Constitutional law can help tutor us where we disagree, teaching us to think and reason about the most important matters that both unite and divide us. What sort of political community did the Constitution seek to promote? What sort of world do we want to inhabit? As Madison put it, "a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
Our politics is not going to take on the refined elements of a seminar discussion. Nor should we expect it to. But we can do better than an ignorant barroom brawl, which is increasingly where we are. Jonathan Rauch recently wrote in these pages that our political disagreements may increasingly be about nothing other than tribal loyalties. It is no wonder we are ignorant; we have not attended to educating for constitutional citizenship. Our political institutions, including our political parties and other civic associations, have effectively given up on their educative function and have thereby fueled tribal division. Madison, again, puts it best: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." This is the world we inhabit.
Of course, teaching civics can be done in deeply problematic ways. We could teach a sanitized version of history that emphasizes only good things or ignores complexity. Yet this is precisely why constitutional law, more than just ordinary civics, is a potent vehicle for teaching civic knowledge: It puts constitutional issues in contested terms. Disagreement is built in from the beginning. And it inevitably forces us to wrestle with some of America's worst moments — there's no ducking Dred, Plessy, or Korematsu. And, in fact, studies have shown that teaching the real version of history — with its conflicts — is more likely to engage students. Certainly, it is more likely to cultivate the mindset and habits of citizenship. But teaching the real version can also speak to progress and even triumph. Discovering ourselves in our constitutional law holds out the promise of attaching us to the constitutional project. And we should not shy away from the hardest questions. Does the Constitution deserve our attachment? Is it worthy of devotion? Does it, as it promises in the preamble, "establish justice"?
Constitutional law provides the sort of civic education Americans seem to so desperately need, and it does so in a way that can help us recall what we share in common, even in our tribal present.