As Thomas Jefferson famously put it in 1816, 29 years after the signing of the Constitution, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”
Unfortunately, for all of us, this is exactly where our country is heading. Only 47 percent of Americans are able to name all three branches of government, according to Annenberg School’s annual Civics Survey. Less than 25 percent could name all the rights guaranteed in the First Amendment. Almost half don’t know what it means when the Supreme Court rules on a law.
If more people understood the Constitution, perspectives on pressing social issues might shift. Americans would feel an urgency to participate in elections, which would improve our pitifully low voter turnout. Politicians would alter how they appeal to voters by being more serious about solutions.
And people would better interact with their government. Folks, for example, would stop contacting City Council offices to address nuclear war (something I’ve experienced as a Council staffer). They’d know nukes are in Congress’ authority.
Here, I’ll explain the Constitution and government structure in a way you likely didn’t hear in high school. I believe the essence of the Constitution is its structural protections, not its guarantee of rights. Of course, there are multiple ways to interpret the Constitution. This is my way.
The Constitution as a structural document
Most people would name one of the amendments in the Bill of Rights as the central part of the Constitution. You know, free speech, gun rights, protection against unreasonable searches, that stuff. But the Bill of Rights was an afterthought. The Founding Fathers didn’t spend a hot, unairconditioned Philadelphia summer debating the Bill of Rights.
What they were debating was government structure. They understood a Bill of Rights lacks teeth without a firm government structure to facilitate rights. So, the most important part of the Constitution is how it structures government.
We call the structure the founders came up with the separation of powers that fragments government into three equal and separate powers: legislative, executive and judicial. This is the hallmark of our government. A recent controversy illustrates why this separation is significant.
Impact of separation of powers
In 2017, there was a mass shooting in Las Vegas. The gunman used a bump stock to enable his weapon to rapidly fire multiple rounds. President Donald Trump directed his director of Alcohol, Tobacco and Firearms to ban bump stocks in response. Trump did it not by urging Congress to pass a law, but by reinterpreting a law that banned “machine guns” to include banning bump stocks. That was lawyerly bullshit. The plain meaning of “machine gun” does not include bump stocks.
By reinterpreting the law to do something the public was unaware of when the law passed, Trump robbed the people (and Congress) of the opportunity to consider whether banning the bump stock was a good idea. The legislative process allows for that public deliberation. Executive fiat via interpretative gymnastics does not. This is why the separation of powers is so important. It protects the process, which, in turn, facilitates the people’s will and rights.
If the President can reinterpret laws to ban bump stocks, he could do it to ban contraception. Or abortion. Or anything else the incumbent President may dislike. And therein lies the danger in allowing the President to violate the separation of powers, banning objects without legislation being passed. Which is why some federal appellate courts blocked the bump stock ban.
“Good intentions don’t equate to good governance.”
Despite Trump’s suspect methods, there was bipartisan support for this ban because it was fresh off a mass shooting, bump stocks are an unnecessary attachment — easy for Republicans to discard — and Democrats had an indicium of nearing gun policy reform. In short, banning the bump stock provided a well-intended end, so folks celebrated. But good intentions don’t equate to good governance.
The first question we should ask ourselves is not whether the policy is well-intended. We should ask: Did they have the authority to do it? In the case of the bump stock ban, the answer is no.
Asking that question is important because institutions do not become despotic overnight. They gain power in increments, with tacit consent from the public, ever blinded by popular short-term outcomes.
People misunderstand the Bill of Rights, too
Because the Bill of Rights is the most popular part of the Constitution, one would think that more people understand it. But there are widespread misconceptions about the Bill of Rights too.
With folks relying on social media platforms like Facebook, Instagram, and Twitter for speech, many believe they are entitled to express themselves however they want on those platforms. This has given rise to claims that social media giants that “silence” viewpoints are violating users’ First Amendment rights to free speech as stated in the Bill of Rights: “Congress shall make no law … abridging the freedom of speech or of the press.”
In reality, the Constitution limits the government, not private entities. Facebook, Instagram, and Twitter are private. So, they are not bound by the Constitution. “Congress shall make no law” does not mean Twitter, Facebook, or Instagram shall make no rule of engagement.
There’s also a widely held belief that the First Amendment’s establishment clause, charging Congress to “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” prevents government officials from expressing religiosity. People colloquially reference this when they say “separation of church and state.”
But that is a grave misconstruction of the clause. To many, “separation of church and state” means just that; the church and state should remain apart, uninfluenced by the other. But, when you add historical context to the phrase, it takes on a different meaning.
Part of what the Founders detested under Great Britain was a system where church officials were the government. The church was the White House. That religious tyranny was a structural failure that the Framers wanted to prevent in the country they were forming. This is why we have an establishment clause, creating a barrier between religious and governmental institutions. It is not a preclusion of lawmakers being guided by their faith. And there is evidence of this.
We force generation after generation to sit in one place for eight hours a day. That is a massive opportunity to influence people while they’re young.
Since this country’s founding, we have had clergymen pray over Congress. I’ve worked in state and local legislatures for years, and in 2023, we still pray before each session. If the establishment clause were a preclusion of governmental officials being guided by faith, the Founders would not have permitted (and paid) clergymen to pray over Congress. And, if it were the case that the clause is a preclusion, then that practice would still not continue to take place over 230 years since the First Amendment’s ratification.
But it is easier to come to that conclusion when all you’re guided by is that there’s a “separation of church and state” — a phrase that appears nowhere in the Constitution. When folks are told why that separation exists and the circumstances under which it was ratified, the phrase makes more sense. This is why enhanced civic literacy guided by historical context is vital.
Why civics education matters
People need to know the nuances of the Constitution and its vitality in preserving liberty. This would inhibit the spread of misinformation on social media, curtail false perceptions of the Constitution’s scope, and change how the public views pressing social issues. The stakes of a well-constructed civic education are immense.
Misunderstandings proliferate because we do a poor job of educating Americans. When some hear phrases like “freedom of speech” and “separation of church and state,” they take them at their literal meaning. But construing documents — especially old documents — necessitates giving words and phrases context. Once contextualized, your understanding of the Constitution and your rights under it fundamentally changes because you realize the structure of the Constitution is the crux of the document.
Frankly, I think it’s too late to usher that awareness into millennials and older generations (sorry, y’all). But we have an opportunity to influence my generation, Gen Z’ers, by instilling an appreciation and understanding of the most important document in this country. That opportunity exists through schools.
We force generation after generation to sit in one place for eight hours a day. That is a massive opportunity to influence people while they’re young. And we don’t. We should be teaching students to understand the Constitution, just as we prioritize students reading old Shakespeare — in all his archaic glory. Except the Constitution has actual consequences for daily life.
By the time people graduate, they should understand why Abraham Lincoln said, “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
Jemille Q. Duncan is Director of Legislation and Policy for Councilmember Anthony Phillips and a Gates Scholar at Swarthmore College.
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