The Sickly State of the First Amendment

November 17, 2010 • Commentary
This article appeared on Cato​.org on November 17, 2010.

The premier historian of the Bill of Rights, professor Leonard Levy, explained why our Constitution was not fully operative until the first 10 amendments became part of it: “We have a Bill of Rights because the state, even the democratic state, cannot be trusted. A Bill of Rights is a bill of restraint against the state.”

A consensus of polls — and the daily news — reveal a deep distrust of Congress and of this president, as was also true of his predecessor. Accordingly, the state of health of the First Amendment, from which all our individual liberties against the state flow — freedom of speech, press, religion, assembly and persistent petition of government for redress of grievances — is vital to all of us. Our voices need to be heard.

Every year, I watch for the State of the First Amendment national survey by the First Amendment Center at Vanderbilt University in Nashville and in Washington. In “Name That Freedom” (New York Times, Oct. 24), John Schwartz concisely and disturbingly reports on the most recent survey by the Center:

“While 61 percent of those surveyed this year knew that the First Amendment protects freedom of speech, just 23 percent volunteered that it also supports freedom of religion, and 18 percent cited freedom of the press. Freedom of association? Fourteen percent. Only 6 percent of those polled could cite the right to petition the government for grievances, the fifth major freedom guaranteed under the First Amendment.”

How many of you knew the First Amendment’s five freedoms?

Since leaving the Supreme Court, Sandra Day O’Connor has vigorously pursued her mission to teach the citizenry why they are Americans. In May, at a New York conference, talking about her interactive website for the new generation in our schools — iCivics​.org — she also focused on the civic ignorance of Americans as a whole:

“Barely one‐​third of Americans can even name the three branches of government, much less say what they do (and) less than one‐​fifth of high‐​school seniors can explain how civic participation benefits our government. Less than that can say what the Declaration of Independence is, and it’s right there in the title. I’m worried.”

Not only the First Amendment, but much also of who we are — and our tumultuous history of what it keeps taking to restrain the state from treating us as King George III tried to do — is unknown to the citizenry.

Throughout the continuing debate on actually accomplishing education reform, there is hardly any concern about making the Constitution come alive, at least for young voters. Why, for example, do we have a Fourth Amendment? Because British customs officers and troops — having written their own writs of assistance (“general warrants”) — would barge into homes and offices of American colonists and turn everything upside down, including those early Americans.

Years ago, while I was interviewing Justice William Brennan in his chambers at the Court, he suddenly asked me: “How can we take the words of the Bill of Rights and make them part of students’ lives?”

We haven’t done that yet. Dec. 15 will mark another anniversary — the 219th of the ratification of adding the Bill of Rights to the Constitution. In how many classrooms will that liberation day be mentioned — or anywhere else in these United States? But some teachers are bringing the First Amendment into their students’ lives.

Despite, for example, its actual showing what can be done to make the First Amendment part of students’ lives, little national attention was paid to the stirring patriotic testimony on April 22 before the Senate Committee on Health, Education, Labor and Pensions by Clare Struck.

She is a guidance counselor at the Malcolm Price Laboratory School, part of the University of Iowa’s College of Education at Cedar Falls, Iowa. She told of her school’s revolutionary (going to the roots of the American Revolution) Elementary Citizenship Program:

“The elementary staff and administration expressed concerns about the students not transferring the level of respect (for one another) they demonstrated in the classrooms to the more unstructured areas of recess, lunchtime, hallways and before and after school.

“We collectively decided to move forward with a proactive response to instill the core tenets of citizenship. We taught students how to advocate for their own rights and those of others.”

Imagine that! James Madison came back to life in that school!

Continuing, Clare Struck showed how those students learned their ownership of democratic citizenship from “teaching and reinforcing the five freedoms of the First Amendment to all our of our PreK through 5 students.”

They learned their individual freedoms by actually practicing them as a basic part of their education.

Among those of our youth uneducated in their freedoms, although there was a sharp rise in the youth vote that brought Barack Obama to the White House, the percentage of young voters in the midterm elections dropped considerably. In “Less Involved Young Voters Say They Felt Abandoned” (New York Times, Nov. 1), 21‐​year‐​old Jessica Kirsner, vice‐​president of the University of Miami College Democrats, explained:

“It’s not the fad anymore. It’s not the fad to be politically knowledgeable and active.”

I expect that when the kids at Clare Struck’s Iowa elementary school become old enough to vote, the notion that being an active citizen is just a fad would strike them as ludicrous. Even un‐​American.

But in how many of our elementary schools — and all the way through graduate schools — are “the core tenets of citizenship” a naturally active part of their curriculum?

Like Sandra Day O’Connor, I worry.

About the Author