Plausible Misconceptions

An article at the Annenberg Public Policy Center’s site explains that Americans are poorly informed about the constitution (hat tip: Tikkun online). It notes a phone survey the policy center conducted. Among the allegedly disturbing items revealed in the survey:

• More than half of Americans (53 percent) incorrectly think it is accurate to say that immigrants who are here illegally do not have any rights under the U.S. Constitution;
• More than a third of those surveyed (37 percent) can’t name any of the rights guaranteed under the First Amendment;
• Only a quarter of Americans (26 percent) can name all three branches of government.

Civic illiteracy is not a good thing. But the survey results, while at times disturbing, don’t strike me as particularly alarming.

The Three Branches of Government

According to the survey’s methodology statement [PDF], the surveyors asked people if they “know any of the three branches of government” and then were asked to name the branches they know. That methodology statement, however, did not say what types of answers were given.

So what counts as a wrong answer? If someone’s answers were “the president,” “the Senate,” and the “the Supreme Court,” that person might or might not be wrong under the surveyors’ standard. The president, the Senate, and the Supreme Court are not the sum of the executive, legislative, and judicial branches. But anyone who would name those three does, in my opinion, have a pretty good idea of what those branches are.

What about other possible wrong answers? Again, without seeing what people said, I can only speculate, but here are some of my guesses about what people might have said:

• • The Federal Trade Commission
  • The press
  • The state governments

None of those answers is right, but I can understand why thoughtful but imperfectly informed person might offer them. The FTC (and other regulatory agencies) can issue regulations that look a lot like laws and judicial decisions even though it’s not a legislative body or a court and even though it’s implementing and enforcing laws, which is an executive branch function. The press is not a part of government, but it it plays a role in keeping the government accountable. State governments are not part of the federal government, but they are part of the federal system and play a role in federal governance, either as checks against the feds or as partners with it.

And let us not make an idol of “the three branches.” Again, the FTC is not a “branch,” but acts in some ways as if it’s a legislative body and in some ways as if it’s an executive body. And what about that phenomenon known as “non-Article III judges”? I suppose their decisions can be appealed in the Article III system, but it’s a stretch to say they’re part of the three branches as envisioned by the constitution’s framers. I’m not here to criticize the existence of regulatory agencies or non-Article III judges, but they are innovations that don’t fit with the “three branch” system.

Now, when you’re wrong, you’re wrong. Even if you’re on a mission to re-conceptualize the notion of “branches of government,” it helps to know the standard definitions before you start to redefine them. I’m not saying it’s good to be ignorant of the branches.

The First Amendment

According to the article,

Nearly half of those surveyed (48 percent) say that freedom of speech is a right guaranteed by the First Amendment. But, unprompted, 37 percent could not name any First Amendment rights. And far fewer people could name the other First Amendment rights: 15 percent of respondents say freedom of religion; 14 percent say freedom of the press; 10 percent say the right of assembly; and only 3 percent say the right to petition the government.

What’s the problem here? Is it that the respondents couldn’t name or didn’t recognize that people have freedom of speech, religion, press, assembly, and petition? I doubt it. Ask someone if they have the right to say what they want, to practice what religion they want, to join together in whatever non-violent, non-criminal group they want, or to write their Congressperson. I think you’d get pretty strong majorities that affirm the existence of those rights, even if the people don’t know it’s the first amendment that acknowledges the rights.

But here’s something else we’re supposed to worry about:

Contrary to the First Amendment, 39 percent of Americans support allowing Congress to stop the news media from reporting on any issue of national security without government approval. That was essentially unchanged from last year. But the survey, which followed a year of attacks on the news media, found less opposition to prior restraint (49 percent) than in 2016 (55 percent).

Part of the trick is determining what those Americans meant (or think the surveyor meant) by “national security.” Did they mean that all the government has to do is say it’s an issue of national security, then all infringements are constitutional? Or did they mean that in certain circumstances, say war or imminent threat, it’s okay to curb some freedom of speech? Do they mean something between those two extremes? You could legitimately argue that prior restraint is always or almost always wrong or at least suspect. But depending on where the respondents fall, their answers aren’t necessarily as disturbing as “less opposition to prior restraint” suggests.

As for people willing to accept “prior restraint,” it is indeed disturbing. But I would like to know how the respondents understood prior restraint. If they believed, for example, that 1) it’s appropriate for the government to classify certain information and that 2) the government has the legitimate power to forbid the press to publish that information, then it’s a closer call than the article implies. Not close enough for me to say prior restraint is okay, but still closer.

Undocumented Immigrants

The ignorance about the rights of undocumented immigrants and the “basic constitutional provisions” that allegedly ensure those rights is among the least disturbing items from the survey. The question is “How accurate is it to say that….People who are in the U.S. illegally do not have any rights under the U.S. Constitution.” 54% say it’s “accurate,” 40% say “inaccurate,”  and 7% say “don’t know/refuse.” (I assume there’s some rounding involved somewhere to make the numbers add up to 100%.)

In elementary, middle, and high school, I learned that any question that presupposes “all,” “none,” “always,” “never,” “any,” or “not any” is suspect because global statements are rarely true.The trick was to know, for example, that a true/false question with those words was usually false. So for anyone who knows the trick, the right answer to the question about whether undocumented immigrants have “any” constitutional rights is “inaccurate,” and a majority of the respondents got it wrong. ¹

And let’s look at the article’s explanation for why the statement is “inaccurate”:

immigrants who are in the United States illegally share some constitutional protections with U.S. citizens. More than a century ago, in Yick Wo v. Hopkins (1886), a case involving a Chinese immigrant, the Supreme Court ruled that non-citizens were entitled to due process rights under the 14th Amendment’s equal protection clause. Other cases have expanded upon those rights.

It’s a sad day for the republic and the freedoms vouchsafed by its constitution when the average Joe and Jane are ignorant of 19th-century immigration jurisprudence. But while Joe and Jane are shown to have been wrong to say immigrants here illegally lack “any” constitutional rights, they might be forgiven for believing immigrants don’t have the full complement of rights. Let us revisit the methodology statement [PDF]. the questions are posed in a “very accurate,” “somewhat accurate,” “somewhat inaccurate,” “very inaccurate,” “don’t know” format. The article doesn’t tell us how many people said “somewhat accurate” and how many said “very accurate.”

Joe and Jane might, for example, know about Fong Yue Ting v. US, which upheld denying the writ of habeas corpus to Chinese immigrants subject to deportation. They are more likely to know about Korematsu v. US, which upheld the internment of Japanese Americans and which technically hasn’t been overruled yet. (They weren’t all immigrants and those who were weren’t here illegally, but if the government can “relocate” even US citizens we should worry about what it could do to undocumented people.) If one moves away from jurisprudence and toward other elements of government policy, we see steps that suggest a very wide latitude for defining who is in the US illegally and for restricting the rights available to them:

• The Chinese Exclusion Act of 1882 outlawed immigration from China, largely as an effort to placate xenophobes in the western US.
• The “gentlemen’s agreement” between Theodore Roosevelt and the Japanese government, which effectually did what the Chinese Exclusion Act did, but with Japan. It was done to satisfy racist objections in California to Japanese immigration
• The 1924 Immigration Act which devised quotas in such a way as to minimize prospects for entry of “undesirable” people, primarily eastern Europeans, with devastating effects for Jews hoping to flee Nazi Germany in the late 1930s.
• The extra-legal “repatriation” drives to coerce Mexican immigrants in America’s southwest back to Mexico during the 1930s. ²
• Much of what has happened since January 20, 2017, and a lot that happened before that date.

Now, just because constitutional rights for some are often honored in the breach and continue to be debated doesn’t mean those rights don’t exist or that “any” rights don’t exist. The 5th and 14th amendments say “no person”–not “no citizen” or “no permanent resident”–shall be denied due process. And most of the other rights mentioned in the bill of rights are restrictions against the government with little mention of what type of person the government might target.

But still, it’s at least “somewhat accurate” to say that people in the US illegally lack constitutional rights, even if they don’t lack all constitutional rights.

Start Where People Are

The director of the Annenberg Public Policy Center is quoted in the article:

Protecting the rights guaranteed by the Constitution presupposes that we know what they are. The fact that many don’t is worrisome….These results emphasize the need for high-quality civics education in the schools and for press reporting that underscores the existence of constitutional protections.

The director doesn’t–and the article I quoted from doesn’t–seem to assign self-serving or nefarious motivations for such ignorance. We should hesitate before doing so as well, even if widespread misconceptions enable some truly horrible actions.

Yes, we need high quality civics education in addition to the standard high school class. And despite my snarky comment earlier about 19th-century immigration jurisprudence, it would be good for people to know more history, including the sad history of racial exclusion and un-free contract labor that were the context for Fong Yue Ting and Yick Wo. I also realize that people who gave wrong answers may not necessarily be thinking of the complications and exceptions that I discuss above. I further am wary before endorsing just any folk understanding of the way our government does or should work.

Still, even when people are mistaken, they likely believe what they do for better than superficial reasons. Let us remember that when it comes to rights, civic literacy is only part of the equation. Something can be constitutional and yet objectionable and something can be laudable and yet unconstitutional, although the last ten or so months have given me greater respect for constitutionalism.

And let us also remember that the “proper” way to interpret the constitution is continually under dispute. Courts change their minds and non-judicial actors (i.e., everyone else besides judges) play a role in shaping the constitution. And there’s always something even the better educated among us don’t know. For example, I was ignorant of the “deem and pass” trick until Congress considered it when trying to enact Obamacare.

This is hard advice to follow. I find it hard, too. For example, I get antsy when I hear some version of the “Oh my gawd! That judge said corporations are people!” Of course, what they’re usually saying is that judges grant corporations too many prerogatives associated with personhood–a respectable position. But I put on my pedant’s hat and insist on the technical definition of a corporation as an “artificial person.” And even that definition could be contested. The question isn’t as clear cut as my gut reaction would make it.

Similarly, I urge others who arguably qualify as civically literate to check their own gut reactions. Governance, the Constitution, and rights are complicated and are, or at least their expression is, historically contingent. If we forget that as we go about “educating” others, we’ll end up condescending to people we can learn from and making enemies of potential friends.

Photo credit: “The Constitution!,” by whatleydude. Creative Commons: Attribution 2.0 Generic (CC BY 2.0).

1. I once wrestled with a question like this in a freshman-level introduction to American politics class in college. There was a true-false question that said something like, “The US Supreme Court today completely reflects the diversity of the American population.” The answer of course was “false.” But then I got to thinking, “well, with only 9 members, you could never have a completely representative Court, so maybe we should look at whether it’s close enough. And because there’s one black person, that’s a little more than 10% of court and black people are about 10% of the US population, then maybe the answer is closer to ‘true’ than the question implies.” Again, the answer was false, especially if you acknowledge, which I’m not sure I did then, that “black” and “white” aren’t the only ways to look at diversity in America.
2. These repatriation drives are documented, for example, in Camille Guerin-Gonzales, Mexican Workers and American Dreams: Immigration, Repatriation, and California Farm Workers, 1930-1939. New York: Rutgers, 1994