A Teacher’s Best FriendThe Department of Public Instruction “highly recommend[s]” that North Carolina school districts use the Institute’s instruction materials to teach the state’s students about America’s founding principles and the Constitution itself — and, on the surface, the materials look quite impressive. They consist of 391 pages of lesson plans, worksheets, student activities and answer keys for teachers, organized into “ten instructional modules” and a “final project” designed to cover and entire semester of coursework. The lesson plans tie each module to particular objectives laid out in the state’s curriculum. And many of the lessons taught by the materials are unobjectionable, or even quite important. A unit on the rights of the accused, for example, emphasizes the principle that “it was better for guilty people to go free than for the judicial system to condemn even one innocent person.”
The Bill of Rights Institute staffer in charge of developing its “curriculum resources” is a former schoolteacher who taught in North Carolina schools. It shows. The Institute was clearly aware of the demands teachers face to submit lesson plans that comply with state standards, to break lessons down into manageable chunks, and to teach higher level reasoning skills beyond memorization and basic comprehension. Many teachers, confronted with the task of planning to teach a new subject matter, will no doubt be grateful that the Institute’s materials exist.
Yet the materials also push a very clear agenda in subtle — and often not-so-subtle — ways. “One might say the Founders were not only concerned with property rights,” a unit on that subject proclaims, “they were passionate about them.” Students are taught that “property rights secure freedom” and that James Madison “criticized excessive taxes.” Much of the materials focus on matters of particular concern to well-moneyed groups such as land developers. The Supreme Court case upholding Obamacare is painted as the culmination of a grand expansion of federal power, even though it actually reduced Congress’ ability to legislate.
The Constitution as Climate ChangeParts of the Institute’s materials rely on a tactic that will be familiar to anyone who has debated a climate change denier, teaching students that a controversy exists over a question that has largely been resolved. The Seventeenth Amendment, for example, is put up for debate.
The Seventeenth Amendment provides that U.S. senators will be selected by voters and not by state lawmakers. Prior to its enactment, state legislatures were frequently deadlocked over who to send to the Senate, and corruption was widespread as moneyed interests sought to influence who would become a senator. Today, this amendment is almost entirely uncontroversial. A 2013 poll found that only 16 percent of American adults believe that it should be repealed.
One member of the 16 percent, however, is Professor Zywicki, the Bill of Rights Institute board member. The materials make a point of presenting Zywicki’s argument that the amendment “resulted in more federal laws that infringe on the powers of states or that carry mandates with no funding attached.”
Similarly, the materials present another important constitutional change that has largely been accepted by liberals and conservatives alike as a catalyst for federal encroachment. In the early days of the Republic, the Bill of Rights was understood to place limits on the federal government, but states remained free to ignore these rights so long as they complied with their own constitution. After the Civil War, however, the Fourteenth Amendment was ratified, and it fundamentally shifted the balance of power between people and the states.
According to Ohio Congressman John Bingham, the primary author of this amendment, one of its purposes was to require states to comply with “the first eight amendments to the Constitution of the United States.” States would be free to ignore the Bill of Rights no longer.
Yet the Supreme Court initially read the Fourteenth Amendment very differently, and they did so for many years. It wasn’t until the mid-to-late twentieth century that the justices began systematically applying most of the Bill of Rights against the states through a process known as “incorporation.” Though justices and scholars still disagree on the margins about how far incorporation should go — the Supreme Court split 5-4 in 2010 on whether the Second Amendment applies to the states — the view that the bulk of the Bill of Rights apply to the states and the federal government alike is now largely uncontroversial.
The Institute’s materials argue that “[i]ncorporation increased the role of the federal government in citizens’ lives” and that “[m]any people now expect that the federal government—not the states—will be the main protector of individual rights.” Though they acknowledge that “[s]ome legal scholars support incorporation,” they warn that “[o]ther scholars” believe that, by subjecting states to constitutional suits in federal court, incorporation gives the federal government a “veto power over state law.” The materials, in other words, present an increased federal role as a cost that must be weighed against the benefits of incorporation. It is unlikely, however, that many students would consider this cost to be very significant at all if the materials presented them with a more comprehensive history of the debate over incorporation.
The materials’ claim that incorporation would lead to the federal government and not the states becoming “the main protector of individual rights” closely maps the Supreme Court’s holding in United States v. Cruikshank that “the people must look to the States” to vindicate many of their rights. Yet, as I explain in my book Injustices, the Cruikshank decision and its aftermath do far more to discredit this view of federal and state power than it does to support it.
In 1872, less than a decade after General Robert E. Lee surrendered his army at Appomattox Courthouse, Louisiana’s Republican Governor Henry Warmoth struck a Faustian bargain with white supremacist Democrats: Warmoth agreed to throw his full support behind the Democratic candidate to succeed him as governor, if Democratic lawmakers agreed to send him to the United States Senate (this was, after all, before the Seventeenth Amendment was ratified). As it turned out, Warmoth’s support included installing Democrats as voter registrars who engaged in widespread voter suppression. Elderly former slaves were denied the right to vote because they had no birth certificate proving they were over the age of 21.
Voter registration sites were relocated, but only white voters were informed of the new location. The result was a contested election where Democratic and Republican candidates both claimed they were legitimately elected to various offices.
In Colfax, Louisiana, black Republicans occupied a courthouse in an effort to cement their control over the local government. Less than three weeks later, a white supremacist mob armed with rifles and a small cannon marched on the courthouse. A monument that now marks the site of this massacre claims that “three white men and 150 negroes were slain” in the ensuing slaughter.
The Cruikshank case was a federal prosecution charging several of the white supremacists who participated in this act of mass murder with criminal violations of their black victims’ civil rights. So when the Supreme Court held that freed slaves must “look to the States” to vindicate many of their civil rights, it effectively denied the federal government its power to halt massacres such as what happened in Colfax, and it left black civil rights almost entirely in the hands of state governments that were quickly captured by white supremacists. The justices who decided Cruikshank and similar cases may not have been the fathers of Jim Crow, but they were at the very least its midwives. And that is the history that the Institute’s materials leave out when they ask high school students to weigh the costs of an increased federal role against its benefits.
In a separate module, the materials acknowledge that “[o]ne major criticism of strong state power comes from the legacy of slavery,” but the materials do not tie this criticism to incorporation. This separate module also presents the argument that “[t]he federal government did not effectively protect citizens’ rights over centuries of slavery and segregation” as part of the case against a robust federal government. Yet while this argument is superficially true it ignores the fact that the federal government was hobbled in its ability to act in large part due to Supreme Court decisions such as Cruikshank (as well as the fact that Southern senators were empowered to block civil rights legislation through tactics such as the filibuster).
Selective HistoryElsewhere, the materials selectively emphasize historical events that paint liberals in a poor light or that imply that important shifts in constitutional doctrine occurred for illegitimate reasons — and this tactic is also deployed in a way that is likely to foster skepticism of the federal government’s power to enact progressive legislation. A unit on the Constitution’s Commerce Clause (the provision enabling Congress to “regulate commerce . . . among the several states”), for example, emphasizes President Franklin Roosevelt’s plan to pack the Supreme Court with additional justices as part of a “political plan” to rescue legislation that a conservative majority on the Court was inclined to strike down. After this plan was unveiled, the materials explain, “[s]ome of the political conflict eased when one justice began voting to support the New Deal,” and, as a result, “[f]ederal power expanded dramatically for the next fifty years.”
While it is true that Roosevelt did announce a Court packing plan, and it is also true that Justice Owen Roberts became the key fifth vote to uphold New Deal programs shortly thereafter, it is unlikely, at best, that the plan actually caused Roberts to change his votes.
After the White House dispatched a messenger to liberal Justice Louis Brandeis to warn the justice about Roosevelt’s plan, Brandeis told the messenger to “tell your president he has made a great mistake. All he had to do was wait a little while.” Roberts had already decided in one of the justices’ secret conferences to break with the Court’s conservative bloc weeks before Roosevelt announced his plan, though the Court did not announce the decision where Roberts broke with his conservative brethren until several weeks later.
More than simply presenting a selective history of Roosevelt’s struggle with the Supreme Court, however, materials’ essay on the Commerce Clause does not even present the view, now widely accepted by most judges and legal scholars, that the Depression-era justices who tried to strike down much of the New Deal were simply wrong about the Constitution.
Indeed, the essay strongly suggests that the opposite is true, claiming that “[m]idway through the twentieth century, Congress started using the Commerce Clause as the grounds for the enactment of many new types of laws to regulate not merely commerce, but the conditions of economic and social life.”
In 1941, however, in a unanimous opinion joined by Justice Roberts, the Supreme Court explained that the interpretation of the Commerce Clause that conservative justices used to thwart liberal legislation in the early-to-mid twentieth century rested on “a distinction which was novel when made and unsupported by any provision of the Constitution.” They added that it also conflicted with the very first Supreme Court decision interpreting that clause.
Elsewhere in the module on the Commerce Clause, the Institute’s materials hide a subtle inaccuracy in an answer key that presumably will only be read by teachers. A worksheet asks students to chart several Supreme Court decisions based on whether they embraced a broad or narrow vision of federal power, one of which is the NFIB v. Sebelius decision upholding most of the Affordable Care Act. In the process of upholding Obamacare, the Supreme Court actually rolled back the scope of federal power and transformed the law’s Medicaid expansion into something that conservative states could more easily opt out of.
Yet the answer key depicts NFIB as the high water mark of federal power over the last century. This interpretation of NFIB closely maps the conservative view that the Affordable Care Act was somehow “unprecedented” and any court decision upholding was necessarily expanding federal power beyond its previous bounds.
A Question of EmphasisThere are, of course, some areas of the law where the Koch brothers’ libertarian outlook is more popular with the public at large than established constitutional doctrines, and at least one of these areas receives a surprising amount of attention in the Institute’s materials. The materials do not just devote an entire module to property rights generally — this is the module which teaches that the framers were “passionate about” property rights — it then devotes a separate module to the subject of takings and eminent domain (the power to require individuals to sell their property to the government at its fair market value). This later module is probably the least subtle portion of the materials, and it frequently crosses the line from subtle suggestion into explicit advocacy.
The politically unpopular case Kelo v. New London plays a starring role in this module. Kelo applied the Supreme Court’s longstanding practice of deferring to elected officials regarding what constitutes a legitimate “public use” of the eminent domain power. Yet it also involved a land development plan that, at least according to Fox News, never materialized after the town of New London, Connecticut required the plaintiff in this case to sell her home. Kelo is an application of the proposition that it is better to leave certain decisions to elected officials who can be held accountable by the public rather than placing them in the hands of unelected judges, but it can also be fairly cited as evidence that elected officials sometimes make poor decisions.
The Institute’s materials, however, present none of this nuance. Students are told that the Court’s application of a longstanding legal rule to what turned out to be an unwise use of eminent domain was actually a “landmark case surrounding the government’s ability to exercise eminent domain” that “changed the concept of public use versus private use forever.” Kelo is not a beloved case, to say the least, but the materials’ decision to devote an entire module to this subject is revealing, given that there are only but so many topics in the rich and diverse field of constitutional law that could be covered in a semester-long course for high school students. Notably, other important constitutional topics, such as the rights of women and gay people to equal treatment under the law, are mostly unmentioned.
The materials’ overall discussion of the Constitution’s promise of equality is equally revealing. Not only does the module on the Constitution’s Equal Protection Clause largely ignore the rights of women, it devotes at least as much time to the subject of affirmative action as it does to Brown v. Board of Education. Students are assigned a major project focusing on affirmative action, and, as part of this project, they are asked to perform such tasks as explaining why a speech by President Lyndon Johnson warning that offering formal equality to African Americans is not enough to cure centuries of racial oppression is inconsistent with the principles established by the landmark Civil Rights Act of 1964:
The Bill of Rights Institute’s materials, in other words, often rely on subtle persuasion. They present a selective view of history, exaggerate conflicts that have largely been resolved, emphasize subjects congenial to a conservative worldview and ignore entirely major threads of constitutional law and history. The students who learn from these materials are likely to emerge more skeptical of federal power and more sympathetic to a libertarian view of property rights. They are likely, in other words, to emerge more like Charles and David Koch.
In the end, however, the fact that the materials are so tinged with ideology is a damn shame. For all of their flaws, they introduce students important areas of American history that are often ignored by high schools. They ask students to consider difficult questions about society’s fundamental values. And, at least on the surface, they treat those students respectfully as people who are capable of evaluating constitutional questions that perplex lawyers and justices alike. North Carolina’s students have much to gain from these activities, if only they were presented without such a clear agenda.