Constitutional Ignorance and Democratic Decay: Breaking the Feedback Loop

—Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law

In September 2014 at the University of Texas, US Supreme Court Justice Clarence Thomas warned of ‘constitutional ignorance’. Exhorting the audience to familiarise themselves with the text of the US Constitution, he stated: ‘I bet you more people have read the instructions on how to use your smart phones than read the Constitution of the United States.’[1] In 2014, such a charge could at least not be levelled at the US government. A central plank of the Democratic Party platform in 2008 was to ‘restore our constitutional traditions, and recover our nation’s founding commitment to liberty under law’[2] after the Bush administration’s embrace of torture and unconvincing arguments for more expansive presidential power. The Obama administration’s record on this pledge may not be immune to criticism, but it has at least tended to accord a central place to the Constitution in policy making.

By contrast, while President-elect Trump is clearly well able to use a smart phone, it has been said that he ‘either disdains the principles enshrined in the United States Constitution or pretends the document does not exist altogether.’[3] Many liberals and conservatives agree that his stated policies would run roughshod over the most fundamental aspects of the US Constitution, including free speech and equality rights, and that he evinces little understanding of the limits on presidential power.[4] The ignorance of the Constitution among many on his cabinet and administration shortlist is also striking. Unlike the sophisticated abuse of constitutional law to degrade democracy seen in states such as Hungary, the Trump presidency raises the spectre of a form of ‘aconstitutional’ governance, where the Constitution is treated as almost irrelevant in policy formation, rather than a constraint to be addressed or even manipulated. The result? Democratic decay–that is, the incremental degradation of the structures and substance of liberal (constitutional) democracy–has become a real threat in the US, even if Trump’s most extreme pledges are disowned or diluted.

Less has been made of the constitutional illiteracy among the US electorate, which has allowed such campaign pledges to gain traction; and which now threatens to present a ‘feedback loop’ of constitutional ignorance between the governed and government that threatens to increasingly push the Constitution to the periphery of policy formation and render its invocation a partisan (anti-Trump) tool in wider democratic deliberation. Public education is a key problem here. As one US observer recently noted: ‘Compounding general constitutional illiteracy, civics classes have been stripped from high school curricula’.[5] Under half of states now require students to even take a one-semester course in American government, compared to widespread civic education in the 1960s.[6] Civil society’s efforts to stop the gap have not been successful.[7] As a consequence, vast swathes of the American public have become lapsed adherents to the much-vaunted ‘secular religion’ of US Constitution-worship. To simply observe that voters apparently took Trump ‘seriously but not literally’[8]on the campaign trail, especially concerning his most extreme pledges, does not present an adequate answer to this issue.

This is, of course, not merely a US problem. For instance, at a recent high-level meeting on Brexit held at Edinburgh Law School[9] one participant bemoaned the ‘constitutional illiteracy, naïveté, or arrogance’ of the UK’s Conservative government in its attempt to trigger exit from the EU through exclusive executive action, without any regard for core constitutional principles: the principle of parliamentary sovereignty; the principle of consent rooted in the devolution settlements (especially in Northern Ireland and Scotland); and, in the Northern Ireland context, the additional international dimension of the Good Friday peace agreement (an international treaty with the Republic of Ireland), which also envisages consent as central to fundamental changes to that Agreement and which requires equivalence in rights protection between Northern Ireland and the Republic (which Brexit would seriously affect).

The very success of the ‘Leave’ side in the Brexit referendum (as well as support for plans to repeal the Human Rights Act; the UK’s quasi-bill of rights) appears to be rooted in widespread public ignorance of the UK’s constitutional structure and traditions: in this connection, the recent Edinburgh workshop discussed the fact that the public fund devoted to educating the UK public about the EU has been slashed repeatedly since the 1980s, and that the public has come to view ‘human rights’ as a toxic term of little relevance to their daily lives, linked mainly to protection of unpalatable ‘others’ (e.g. terrorists, prisoners). Who can forget that ‘What is the EU?’ was the second most Googled term in the UK on the day of the referendum result?[10] In the five months since the vote the feedback loop between the governed and government has become all too real: public constitutional ignorance is reinforcing and facilitating constitutionally illiterate governance, and with it democratic decay.

It might be argued that constitutional ignorance is more understandable in the UK, both in Westminster and on the street, where the combination of an unentrenched constitution, a perplexingly evanescent line between constitution law and politics, and a suite of cross-cutting and highly complex constitutional reforms in just 20 years have rendered the fabric of the UK Constitution a forbiddingly dense tangle of rules, lacking a fully coherent pattern, and marred by far too many loose threads. However, in the era of expansive government all constitutional systems tend to present a daunting level of complexity: in the US, for instance, reading the Constitution will only take you so far, and may provide a skewed picture, especially in a constitutional system where judicial decisions play such a central part in addressing the meaning, abeyances, and silences of the terse and venerable constitutional text (as seen in many Tea Party takes on the Constitution).

Yet, the answer cannot be to simply leave it to the experts: the resounding message across the world is that electorates are tired of the decades-long supremacy of technocrats.[11] Legal constitutionalists can no longer defend an unreconstructed élite, top-down approach where the ‘constitutional’ in ‘constitutional democracy’ cannibalises its conceptual partner through excessive focus on expert legal and technical knowledge, and little emphasis on how ‘the people’ operate as a constitutional actor–a position not only rooted in fears of majority tyranny, but also in doubts as to the average citizen’s capacity to grapple with the intricacies of constitutional government. In both the US and the UK the recent conversation has centred on how State institutions, especially the courts, can constrain constitutionally suspect governance. However, the temptation to ignore the role of ‘the people’ in this conversation, on the basis that the electorate has handed the reins of power to constitutionally illiterate populists, must be resisted.

That said, constitutional ignorance–which encompasses lack of knowledge, strongly held misconceptions, and disdain for law as élite knowledge–also presents a stark challenge to political constitutionalists: in the current climate their guiding premise that elected bodies and individuals tend to be fundamentally rational and reasonable simply does not chime with reality. Ilya Somin’s leading work on ‘political ignorance’ in the US context has raised serious questions for democratic theory and the proponents of deliberative democracy, [12] and his view that ‘a major increase in political knowledge is unlikely in the foreseeable future’[13] appears right. How, then, can we start to break the feedback loop? If we are to combat the election and actions of constitutionally ignorant governments, and the slide toward democratic decay more broadly, perhaps one starting point is to focus on how constitutional knowledge–i.e. the very core constitutional values and traditions that are supposed to inform, frame, and constrain governance–can be effectively enhanced in the short term among the public, in a way that avoids long-standing traps such as reducing all discussion to human rights. A more extensive enhancement of such knowledge is a generational task, and in the prevailing atmosphere of post-truth, post-fact, post-law, hyper-partisan populist politics, presents a defining challenge for constitutional lawyers, civil society, and policymakers alike.

Suggested Citation: Tom Gerald Daly, Constitutional Ignorance and Democratic Decay: Breaking the Feedback Loop, Int’l J. Const. L. Blog, Nov. 17, 2016, at: http://www.iconnectblog.com/2016/11/constitutional-ignorance-and-democratic-decay-breaking-the-feedback-loop

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[1] JL Bridges, ‘Justice Clarence Thomas warns of constitutional ignorance during UT Tyler appearance’ Tyler Morning Telegraph 17 September 2014 <http://www.tylerpaper.com/TP-News+Local/205427/justice-clarence-thomas-warns-of-constitutional-ignorance-during-ut-tyler-appearance>.

[2] Available at <http://www.presidency.ucsb.edu/ws/?pid=78283>.

[3] T Conerty, ‘Donald Trump’s Constitutional Ignorance’ Outset 27 June 2016 <http://outsetmagazine.com/2016/06/27/donald-trumps-constitutional-ignorance/>.

[4] See e.g. K Bellware, ‘Donald Trump Is ‘A Unique Threat To American Democracy’ Washington Post 24 July 2016 <http://www.huffingtonpost.com/entry/donald-trump-washington-post-threat_us_579502a9e4b0d3568f8397e1>.

[5] Ibid.

[6] A Guthrie Ferguson, ‘Jury Instructions as Constitutional Education’ (2013) 84 U. Colo. L. Rev. 233, 266.

[7] Ibid.

[8] S Zito, ‘Taking Trump Seriously, Not Literally’ The Atlantic 23 September 2016 <http://www.theatlantic.com/politics/archive/2016/09/trump-makes-his-case-in-pittsburgh/501335/>.

[9] ‘Brexit and the British Bill of Rights’, Workshop and roundtable at Edinburgh Law School, Thursday 27 October.

[10] JJ Roberts, ’Brits Scramble to Google ”What is the EU?” Hours After Leaving It’ Fortune 24 June 2016 <http://fortune.com/2016/06/24/brexit-google-trends/>.

[11] See e.g. S Mallaby, ‘The cult of the expert – and how it collapsed’ The Guardian 20 October 2016 <https://www.theguardian.com/business/2016/oct/20/alan-greenspan-cult-of-expert-and-how-it-collapsed>.

[12] See I Somin, Democracy and Political Ignorance: Why Smaller Government is Smarter 2nd edn (Stanford University Press, 2016); and I Somin, ‘Deliberative Democracy and Political Ignorance’ (2010) 22 Critical Review 253.

[13] Somin, Democracy and Political Ignorance 2nd ed ibid 4.