A Crucial Element of Democracy

This is a blog by Robert Gutierrez ...
While often taken for granted, civics education plays a crucial role in a democracy like ours. This Blog is dedicated to enticing its readers into taking an active role in the formulation of the civics curriculum found in their local schools. In order to do this, the Blog is offering a newer way to look at civics education, a newer construct - liberated federalism or federation theory. Daniel Elazar defines federalism as "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both." It depends on its citizens acting in certain ways which Elazar calls federalism's processes. Federation theory, as applied to civics curriculum, has a set of aims. They are:
*Teach a view of government as a supra federated institution of society in which collective interests of the commonwealth are protected and advanced.
*Teach the philosophical basis of government's role as guardian of the grand partnership of citizens at both levels of individuals and associations of political and social intercourse.
*Convey the need of government to engender levels of support promoting a general sense of obligation and duty toward agreed upon goals and processes aimed at advancing the common betterment.
*Establish and justify a political morality which includes a process to assess whether that morality meets the needs of changing times while holding true to federalist values.
*Emphasize the integrity of the individual both in terms of liberty and equity in which each citizen is a member of a compacted arrangement and whose role is legally, politically, and socially congruent with the spirit of the Bill of Rights.
*Find a balance between a respect for national expertise and an encouragement of local, unsophisticated participation in policy decision-making and implementation.
Your input, as to the content of this Blog, is encouraged through this Blog directly or the Blog's email address: gravitascivics@gmail.com .
NOTE: This blog has led to the publication of a book. The title of that book is TOWARD A FEDERATED NATION: IMPLEMENTING NATIONAL CIVICS STANDARDS and it is available through Amazon in both ebook and paperback versions.

Friday, October 26, 2018

JEFFERSON AND INNATE GOODNESS


This writer’s reading of Gary Wills’ history of Thomas Jefferson’s thinking in writing of the Declaration of Independence – at least as reflected in the books he read – ran across an insightful quote.  The quote comes from Jefferson’s pen.  It reads:
Man was destined for society.  His morality, therefore, was to be formed to this object.  He was endowed with a sense of right and wrong, merely relative to this.  This sense is as much a part of his nature as the sense of hearing, seeing, feeling; it is the true foundation of morality, and not the to kalon,[1] truth, etc., as fanciful writers have imagined.  The moral sense, or conscience, is as much a part of man as his leg or arm.  It is given to all human beings in a stronger or weaker degree, as force of members is given them in a greater or less degree.  It may be strengthened by exercise, as may any particular limb of the body.  This sense is submitted, indeed, in some degree, to the guidance of reason; but it is a small stock which is required for this; even a less one than what we call common sense.  State a moral case to a ploughman and a professor.  The former will decide it as well and often better than the latter because he has not been led astray by artificial rules.[2]
Is this true?
          The sentiment flies in the face of the tabula rasa view of the human mind.  To remind the reader – if needed – the term tabula rasa became prominent during Jefferson’s time.  That can be attributed to the writings of Jean-Jacques Rousseau, Francis Bacon, and John Locke.  It basically says, humans are born with no beliefs, inclinations, or biases other than their basic instincts.[3]
Of these three writers, Locke is most interesting when one is considering Jefferson’s thinking and writings.  Many seem to want to attribute this founding father’s inspiration coming from Locke and Locke’s supposed adherence to a natural rights view – as that construct is defined today. 
Wills claims that Jefferson did not even own a copy of Locke’s famous political/government classic, The Second Treatise of Civil Government.  But he did own Locke’s Essay Concerning Human Understanding, a more epistemological work.  And yet, the above quote seems to indicate Jefferson’s disagreement with Locke’s contention that humans are born with a clean slate.
This was an active point of debate during Jefferson’s time.  Such writers as Thomas Reid, Francis Hutcheson, David Hume, and Adam Smith actively contributed to this discussion – they did not all agree.  But some time has gone by – the discussion referred to here occurred during the late 1700s, coinciding with the writing of the Declaration and later on, the Constitution. 
In the years since, the study of psychology or related study, have in part been about answering the questions:  are humans naturally prone to be good; to do good works?  The answer:  maybe.  There is evidence indicating Jefferson was right, but the final verdict is still out.  But the research does suggest an answer.
One researcher, Michael Tomasello,[4] reports that one can observe young children have a bias toward good works – being helpful (at least attempting to be so).  And further, that this bias is not enhanced or furthered by rewards.  Therefore, training does not enhance or detract from this proclivity.  Plus, researchers observe this trend across cultures that vary in how and when social rules are taught.  And humans’ relatives – chimpanzees – show this bias toward helping under appropriate experimental setups.
In sum, Tomasello believes that, yes, humans have a natural inclination toward helping others from an early age and that what parents do or the culture encourages has little to do with this bias.  But that view is based on work with very young children.  This writer, a former secondary school teacher, can testify that teenagers, as a group, are not known for their altruism. 
He witnessed acts of charity by students he dealt with, but he also witnessed ample cases of cruelty or indifference when it came to the needs of others.  So, is there a transition as children grow up?  Tomasello reports further:  as very young children become older, say about age 3, they are more discriminating as to who will benefit from their good works.  It takes on a more transactional character; they will be more likely to be kind or apt to do a good turn to someone who has been good to him/her.
Also, at work is youngsters learning and accepting social norms.  These norms exist to facilitate societal existence – they are important.  There are too many needed behaviors from basic courtesies to how to behave in various social events or arrangements to count on more formal approaches, like enacting laws.  If nothing else, they make social living easier.  So, as children learn these norms, a natural tendency is to want to be part of it all and not be seen as weird.  Weirdness includes bucking social norms and among the young is fodder for ridicule.
Another researcher, Hillard S. Kaplan, agrees.  From an anthropological perspective, Kaplan is said to report “[m]odern humans have lived for most of their existence as hunter gatherers, so much of human nature has presumably been shaped for survival in such conditions … Kaplan has found evidence of cooperation woven into many levels of human activity.”[5] 
This includes division of labor between the sexes, among the ages of people, and among kin members and members of other families.  No choices here, cooperation was essential for survival.  And to be efficient, people being cooperative, need to be so willingly or voluntarily. 
The more people want to be in-sink with what is expected or needed, the more likely it will be done correctly, thoughtfully, and with less resources.  Feelings of altruism facilitate establishing such relationships.  Further, the more a society becomes specialized in its economic activity, the more these factors become important.
The cited New York Times’ account of this research goes on to report:
Indeed, it is in our biological nature, not our political institutions, that we should put our trust, in this view. Our empathy is innate and cannot be changed or long suppressed. “In fact,” Dr. [Frans] de Waal writes, “I’d argue that biology constitutes our greatest hope. One can only shudder at the thought that the humaneness of our societies would depend on the whims of politics, culture or religion.”
The basic sociability of human nature does not mean, of course, that people are nice to each other all the time. Social structure requires that things be done to maintain it, some of which involve negative attitudes toward others. The instinct for enforcing norms is powerful, as is the instinct for fairness. Experiments have shown that people will reject unfair distributions of money even it means they receive nothing.[6]
          Yes, research also indicates that humans can be selfish as well as charitable.  And, as this blog has argued, the educational institution in adopting, along with the whole polity, a natural rights perspective as the most influential view of governance and politics has led to an abandonment of being that institution dedicated to bolster the charitable side or a moral side.  It has led to a youth culture not noted for its altruism.
          Also, anti-social events – wars, criminality, snobbery, etc. – call for cooperation.  That is, to be successful, within an effected group, those who can exploit cooperative tendency for others in the group, will more likely achieve its goals.  “Lawrence H. Keeley, an anthropologist who has traced aggression among early peoples, writes in his book ‘War Before Civilization’ that, ‘Warfare is ultimately not a denial of the human capacity for cooperation, but merely the most destructive expression of it.’”[7]
          That then is what this question over cooperation, altruism, helpfulness, being moral, and the like tends to inspire in the current discussion.  Perhaps the late 1700s is not that long ago.  The balance between selfishness – natural enough – and charity has been part of the human condition from before civilization.  Civics education – one can argue – needs to address this ongoing battle.


[1] Kalon refers to ideal physical or moral beauty as the term was used by ancient Greeks.

[2] Garry Wills, Inventing America:  Jefferson’s Declaration of Independence (New York, NY:  Vintage Books, 1978/2018), 202-203.

[3] Without trying to be suggestive, the writer’s understanding is that sucking is about the only behavior instinct humans have.

[4] The information in this posting reporting on contemporary research on the psychology of altruism is taken from Nicholas Wade’s reporting.  See Nicholas Wade, “We May Be Born with an Urge to Help,” The New York Times, November 30, 2009, accessed October 25, 2018, https://www.nytimes.com/2009/12/01/science/01human.html .

[5] Ibid.

[6] Ibid., emphasis added to highlight the potentials of a viable civics-education program.

[7] Ibid.

Tuesday, October 23, 2018

TEACHING TORT LAW TO SECONDARY STUDENTS


[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Comparing the “short” history the last series of postings presented with that of foreign trade or the opioid crisis of earlier postings, this last history is not so short.  The length has to do with organizing that history around the three tensions highlighted – strict liability vs. negligence, misfeasance vs. nonfeasance, and factual causation vs. legal causation. 
But a teacher might feel that to assign students to read that history might be asking too much.  This developer agrees.  In these considerations, teachers should keep in mind the big picture: what do students need to know to be able to evaluate the nation’s handling of tort law – especially as it relates to federalist values?  And that portion of the history reviewing strict liability vs. negligence might be enough.
With that in mind, he offers some other options.  One concern is that some of this history might prove to be too abstract.  For example, describing intervening nuances in attributing negligence can be found too difficult for many students to appreciate or understand.  What might be considered is to either assigning those portions of the history to the more sophisticated students or omit it from the history altogether. 
          A second concern, the length itself, can be handled in various ways.  One way is:  the teacher can divide the class into three groups assigning each group one of the subsections that correspond to the three tensions.  This can be done several days before the beginning of the unit and, if assigned that way, the teacher can dedicate the first lesson (first class period) of the unit reviewing a list of organizing concepts along with conducting a discussion over the “no duty to a stranger” principle.[2]
          The discussion can last about fifteen minutes and then segue into a conceptualizing exercise that can grow out of the discussion.  So, as the discussion progresses, the teacher can present organizing concepts:  the American court system (its structural elements), its tensions (the three tensions highlighted in the history and of which each student has read about one of them), common law/case law, civil law, precedent, defendant and plaintiff (the adversaries), cause vs. fault, trial courts, appeal courts, reasonableness, and foreseeability. 
          During the last half of the lesson (about twenty-five minutes), these concepts can be reviewed.  By reviewing the concepts, the aim is not to impart sophisticated definitions or instilling a working capacity in their use.  Instead, the aim is to introduce the students to these ideas and have them begin using the ideas by reflecting on how they relate to one another.  One tool that teachers have used for this type of lesson is a concept wheel. 
A teacher offers the student a central concept – here, that would be tort law – and writes its symbolic representation – “tort law” – in the middle of a large circle.  The teacher suggests three or four main sub-ideas.  For example:  tensions, feasance, cause and fault, and liability standard can be used.  If this is a bit too abstract how about blame, money award, duty, and adversaries? 
Students, in their notes or on a handout (which can be already set up), as the discussion continues, are to fill in the circle with the reviewed concepts as they see them relate to one or more of the sub-ideas.[3]  As time allows, the student toward the end of exercise write out, to the best of their ability, a working definition for each concept and a brief paragraph on how one of the concepts relate to their portion of the history they were assigned to read.[4]
Lesson two can be dedicated to review, in broad terms, the nation’s court system.  This need not be overly detailed account of the structure.  A working knowledge of the following will do.  That is, knowing that there is a federal/national court system and state court systems; and within each level, there are trial courts, initial appeal courts, and a supreme court and that appeals follow that progression.  The teacher might augment this by explaining generally what an appeal is.
And, further, that the grounds for an appeal can be for various reasons; i.e., (1) a determination that the verdict is unreasonable or that during the trial the verdict was not supported by the evidence; (2) the judge made a mistake in applying the law (either statutory or constitutional law); and (3) an obvious miscarriage of justice is being perpetrated by the verdict or the trial’s process.  The textbook can be of assistance in this lesson.  Most civics textbooks review the structure of the court systems of the nation.
Lesson three could have students do an extended exercise – over two class periods – in which the students analyze their history reading to review the facts that are portrayed and prepare for an argument of how the history relates to federated values.  The teacher begins this by reviewing the federalist moral code – a code presented earlier in this blog.[5]  The lesson strives to have students prepare and engage in an argument over the federalist nature of tort law.
Another approach to this unit is for all students to read the whole history – over three assignment allotments – and then follow the above suggested activities around such a reading schedule.  Whether the reading is assigned to all students or is divided into thirds, the main effort is to, one, have students evaluate tort law in the US in accordance to federalist values and, two, use the opportunity to develop an argument over some aspect of tort law.
This latter aim can be accomplished if upon implementing the suggested approach for the two-class period lesson outlined above, the teacher directs students to pick one of the cases the Great Courses source identifies and is listed in an accompany online site.[6]  The site identifies a list of cases that have served up precedents regarding the various issues related to tort law in the US. 
By pairing students – two students pick the same case – they read the online material, consider the history of tort law, and apply the concepts reviewed in class to develop a pro-federalist argument (how the case advances a federalist value) and an anti-federalist/perhaps pro-natural rights argument (how the case challenges a federalist value and/or advances a natural rights argument).  Each student takes up one of these positions.
The arguments are written down in a logical format – perhaps utilizing Toulmin’s model reviewed and explained in the former posting, “Toulmin’s Elements of a Logical Argument (August 22, 2017).
The last lesson of this unit would be dedicated for the unit’s evaluation element.  Here the students can be tested to see their comprehension of tort law concepts, their appreciation of how tort law challenges federalist values, and perhaps their ability to evaluate – or short of that, synthesizing an existing critique (either in favor or in opposition) – to the tort system of this nation or to one of its elements.
With that evaluation lesson, the unit of study dedicated to the judiciary system comes to an end.  This unit represents how a suggested course of study in civics can treat a national element of the nation’s governmental/political arrangement.


[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] For readers who have not read this blog’s treatment of this principle, it refers to the fact that American common law does not place any burden or duty on a citizen to do something positive to assist another party.  The example given to illustrate this principle is:  one does not legally need to save a flailing baby in a puddle from drowning.

[3] One can readily see what a concept wheel looks like by using a search engine with that term, “concept wheel,” to find it.

[4] If the lesson takes too long, students can finish this assignment overnight and have it collected at the beginning of the next lesson – possibly for a quiz grade.

[5] See the posting, “A Federalist Moral View,” June 20, 2017.

[6] This site is not completed yet.  Over the next week or so, it will be.  Remember, this development is in real time!  The site has the following URL:  https://1drv.ms/w/s!AjzdhXNiY9HO3AFweEjyHhWDwY0G