MUDDY LEGAL LANGUAGE

Teaching the role of the Supreme Court to secondary students can be tricky. A couple of intuitive notions are at play when considering this role and, in and of themselves, students can readily understand them and their implications on relevant structural elements of the judicial branch. One is that in a democracy, the majority rules and the other is that fairness calls on the majority not being able to have its way in certain situations – such as when the majority wants to tell you what you can say and what you cannot say. The first element relates to the authority of legislatures to make laws and set public policy. The second element more directly relates to the role of the court in that it is that body that determines when the legislature, the democratic body, goes too far. If the explanation of the court could stop there, the task of explaining it would not be too hard. But of course, it doesn't stop there.

To begin with, the rights that the court protects are not absolute. As the standard example goes, while you have the right to say what you want, you don't have the right to yell “fire” in a crowded theater. Or, to mention a not so often cited example, your property can't be taken away from you without due process of law. This is a complication that can confuse the student because many students tend to think in absolute terms – do you have the right or not? But it gets even more confusing than that. There are other obvious complications such as those entailed in the given situations in which litigants find themselves; there are the complications of the related law and there are the complications of past judgments – the precedents – of prior court decisions. Each of these has a bearing on a given case before the high court. And finally, there is the complication of the language that judges and those who comment on the work of the courts use to describe the institutional practices of these judges and courts.

Take the term, for example, “activist judges” or “activist courts.” Whether a judge or a court is “activist” is important; it reflects a central philosophical bias of a particular judge or court. It is also part of the political jargon the media uses to describe the activities of the judicial branch, either in the person of an individual judge or a particular court. In essence, the term is usually used to categorize decisions that overturn legislated laws – ostensibly because they go too far and offend the Constitution. It is the Constitution that, from a legal angle, identifies the rights we have. So, by finding a law unconstitutional, a court is saying the legislative branch passed a law and the executive branch signed a law that has in effect – even if unintentionally by the other branches – offended a provision of our constitution. The term activist is used somewhat pejoratively in that the judges, at least at the federal level, are not elected. It is interesting that the language does not say the legislators ignored the Constitution when they passed the challenged law. Instead, the prevailing language places the court in a defensive posture by implicating it is going against the wishes of the people, as expressed through their elected representatives. Usually when you hear the word “activist,” in this context, it is not meant to be a good thing. And the side that usually makes the charge that certain judges or courts are activists has been conservative or the Republican Party.

This charge has been used in a variety of cases – those that overturn federal law, those that have overturned state law or other legal practices, and those that have overturned prior judgments, the precedents – by finding such law or action offending some aspect of the Constitution, in one way or another. To explain this fully would take much more space than I care to take up here, but I hope you can see my main contention: this whole business of the courts and their judges gets complicated. And it doesn't end there.

I indicate above that the charge of activism leveled against the courts and judges has come mainly from our conservative politicians and pundits. But there have been enough right wing opinions issued by the courts that have also overturned legislated law. Some of these decisions have garnered enough public notice that the charge of activism has been leveled against them by our liberal or Democratic politicians and pundits as well. So to skirt the charge – and make this whole business even more complicated – the right, headed by Supreme Court Justice Antonin Scalia – has made a distinction. He distinguishes decisions as activist not on whether a court overturns a legislated law, but on whether the court is upholding or overturning a law based on a right or other basis not distinctly mentioned in the Constitution. If it is, then it is being activist. If it is not, then the court is not activist, but instead it is “engaged” or it is practicing engagement. An engaged court, according to this view, is just simply doing its job, even if it is overturning the will of the people. On behalf of civics instructors, let me thank the good justice for clearing up the whole thing.

But let us examine the main example that conservatives like to use in this distinction. They claim that overturning a precedent, the principle that abortion is a privacy issue, can be done because the Constitution does not specifically identify the right to an abortion and that relying on the constitutional provision protecting privacy is too broad a stretch. A conservative judge, in other words, could not protect this “right” because abortion, as a right, is not identified in the Constitution. On the other hand, the history of abortion and its regulation have not been so one-sided as to say that if the founders considered abortion they would not have designated it a private affair and, therefore, protected by the Fourth Amendment. Authorities, historically, have not been clear or one-sided in their consideration of the legality or morality of the practice. Even religious authority did not definitively proclaim abortion to be sinful through the centuries – the Roman Catholic Church did not ban abortions until the 1500s. While there seems to have always been a questioning of the morality of the practice, it is very likely that the founding fathers thought that such an issue should be determined by local standards. The issue became national when the Fourth Amendment, with its protection of privacy rights, became a nationally protected right through the auspices of the Fourteenth Amendment; that is, when the courts incorporated privacy into nationally recognized rights – which prohibits Congress or state authorities from legislating or performing governmental practices denying the right. Then the question became: when the founding fathers ratified the Fourth Amendment, would they have considered the decision of getting an abortion a private matter? To say that they had to specifically identify abortion in the text of the Constitution is, I believe, irrational – the language of the Constitution was not written with that level of specificity. For example, do you have privacy rights concerning your collection of photos? Most would say you do, but the Constitution doesn't mention photos – they didn't even exist in the 1790s. If courts are to become “engaged,” they need to be reasonable in their engagement.

According to Justice Ruth Bader Ginsberg, when it comes to judging whether a law, policy, or a precedent is constitutional or not, one can ask three questions: does the legal question before the court relate to a violation of a fundamental right? Does the legal question before the court relate to frustrating the political process? And does the legal question before the court relate to an alleged discrimination of minorities? If the answer is yes to any of these questions, justices should be extra vigilant in reviewing the case and seek solutions that are the least offensive to any of the rights violated.

How activist is our current Supreme Court?¹ Both liberals and conservatives have leveled the charge against the current sitting high court – the Roberts Court. According to the New York Times, the following score card can be issued: In terms of reversing the court's own precedents, the Roberts Court has done this in 1.7% of its cases compared with the Warren Court (1953-1969) and the Rehnquist Court (1986-2005) which had, respectively, a 2.4% rate. In terms of overturning laws, the Roberts Court has done this in 3.8% of its cases compared to the Burger Court (1969-1986) which had a 8.9% rate. Generally, comparing the Roberts Court to courts in the post World War II period, our current court has not been particularly activist, at least as measured by the metrics just indicated. But then again, a civics teacher who is trying to explain all this might say, “Yes, but this doesn't indicate how engaged these courts were.” Huh? Oh well; perhaps a teacher should just avoid, no matter how important, the term “activism” or “engagement” all together. After all, its use has been mostly for political purposes. Liberals regard the court activist when it overturns liberal laws and conservatives do so when the court overturns conservative laws. The important point is that the court can overturn laws as the Congress can pass and the President can sign constitutional or unconstitutional laws. Students should know what that means and why it is that that authority exists.

1For a helpful summary of the Roberts Court's level of activism, see Liptak, A. (2013). How activist is the Supreme Court? The New York Times, October 13, Sunday Review section, p. 4. The account of the language game introduced by Justice Scalia - “activism” vs. “engagement,” as well as the percentages used to compare the Roberts Court with previous courts, is derived from this article.

AIN'T NO BUSINESS

I have described and explained the natural rights construct. I have stated that this construct has become the prominent perspective among Americans. Again, that is not to say that other constructs don't have influence on how we see our social world. But what I am saying is that this particular construct is the most influential of these perspectives. And as such, it is being applied to the policy formation of more and more endeavors. One such endeavor is the running of our schools.

We expect our businesses to be run in accordance with natural rights thinking since, in a capitalist economy, we depend on individuals to take their fates in their own hands, be courageous, risk the resources they can bring to bear, and begin a business. By doing so, they increase our wealth, provide a wanted product, and create jobs. The natural rights construct is a view of the world that encourages such actions by promoting the individual to define, for him/herself, the values, goals, and aims he or she will pursue. For many, aiming to maximize his or her financial and material well being is central to his or her value system. Business pursuits, experience tells us, are prominent ways to seek such rewards. This, in itself, is admirable and desirable. The problem is that when such thinking comes to be the prominent way of seeing things, it can influence our view of how we should run just about all of our affairs. To illustrate, let's look at how the natural rights perspective is being applied to education in the US.

In writing about this, I have to depend on reports from others, because I have not been a classroom teacher since 2000. That year is rather pivotal, with the soon to be inaugurated administration of President George W. Bush. Through his efforts, the reform legislation, No Child Left Behind, took effect. Of course, of more recent vintage, the reform, Race to the Top, has also been initiated. In both cases, several policy options have been started. These, in turn, have been inspired by natural rights views. In short, policy makers have put into effect practices that either reflect business thinking or provide opportunities for entrepreneurs. Let me share some of them with you.

The first aim of an entrepreneur is to create a demand for a product or for some change in an existing product. Those who are spearheading our view of business thinking in running our schools have sponsored and actively engaged in convincing us that our existing school system is a total failure. This effort started a long time ago. In 1983 (that was thirty years ago), President Reagan had a commission report on the state of American education. The report, A Nation at Risk, described an educational system in dire straits. Not only were things terrible; the conditions posed a danger to our national security – even though we have since been able to win a Cold War and still enjoy, as the only nation, a superpower status. In her recent book, Diane Ravitch¹ – someone who bought into this dire argument initially – points out that National Assessment of Education Progress results, graduation rates, and college admittance numbers all point to the fact that education in America has been improving since the sixties when we began desegregating our schools. Yes, our improvement has been slow and there are gaps in this general trend, as is the case with black and Hispanic students, but it seems that any shortcomings are more a result of income inequalities than anything else. Comparing our income distribution situation with Finland's, a nation reputed to have one of the world's best educational systems, they have 5% of their children living in poverty whereas we have 23%. In addition, Ravitch points to another condition that is highly responsible for our shortcomings; that is, we have re-instituted segregation – this time reflecting residential patterns, not segregation statutes – and the current practice is legal and has been generally accepted. The problem is that the effects of poverty and a general lack of resources among these segregated schools make improvements in them extremely unlikely.

After a demand is created, then a set of reforms is suggested. These include

• sanctioning charter schools – many of them being organized in a way that provides profit-making opportunities for those entrepreneurs so disposed
• instituting high stakes testing which has affected curricular choices such as eliminating non-tested subjects, arts and such, from course offerings and has also motivated cheating on the part of educators who know their employment depends on test results
• outsourcing of public school functions to private agencies instead of providing adequate staffing such as psychological and counseling professionals – a change that provides even more for-profit opportunities – and –
• instituting carrot and stick strategies to motivate teachers to adopt desired practices – these include merit pay, which has never worked, and posting teachers' names alongside the testing scores of their students

All of these changes are meant, we are told, to increase competition and accountability. The results of these changes, so far: None. The rate of improvement has not changed.

Ravitch, in her book, has several recommendations. They make sense and deserve a try. But I am afraid, given our current views of schools and what we see as the optimal ways of getting things done – as defined by the natural rights construct – we are very unlikely to give such reforms any chance. She, for example, calls for diagnostic testing – which aims to identify students' needs instead of high stakes testing. She also calls for toughening entry requirements for those who seek to enter the teaching profession. This would bolster the status of teachers and increase our trust in them so that they, in turn, can be allowed a level of autonomy that encourages professionalism and innovation among our teacher corps. I have a number of other changes to recommend, but let me end with a general observation.

From my dated first-hand knowledge of schools and from what I have been able to find out about what is currently going on now in our schools, I think that any effort toward improvement needs to be holistic in its approach. While some insights from the world of business can be helpful, that perspective should not serve as our central mode of thinking. To begin with, education is not a consumer service such as having your vacation planned or having your plumbing fixed. It is a service that represents a discipline. Education is something you commit to and are willing to sacrifice to attain. It is a complex service with multiple factors affecting how it transpires. A lot of this I have written about before, but Ravitch's new book provides the opportunity to address this topic anew. I am not as readily disposed to viewing our educational system as “successful” as Ravitch seems to indicate. There are serious problems with the way we run our schools. But I agree with her that a lot of the problems stem from “business practices” being applied to education. We have adopted a view of education as a typical consumer product; we have applied “bean counting” practices that, in the search for short term efficiency, that have overburdened our school staffs; and we have underestimated the challenges of poverty, segregation, and low morale among school personnel in running truly successful schools. All of these defy a “magic bullet” solution or the adoption of a business model. Instead, we need to see a school as a potential or existing community – a community that is born from a community and should maintain, within and without itself, communal characteristics.

1The account in this posting of Ravitch's book is taken from Kozol, J. (2013). This is only a test. New York Times, Book Review section, September 29, p. 21. While I have not had the opportunity to read Ravitch's recently published book, I have read and can recommend her previous book, Ravitch, D. (2010). The death and life of the great American school system: How testing and choice are undermining education. New York, NY: Basic Books. In this earlier work, she introduces many of her concerns with the effects on business thinking on our school system.

NEED TO BE PRUDENT SERPENTS

One can notice when reading the founding fathers – or reading about them – a central concern these men shared: the selfish and self-serving aspect of human nature. While they believed in forming a republican, federalist system of government – one in which the common welfare of the nation was paramount – they believed that the resulting system had to account for the destructive power of selfishness. How? That system needed to cast the interests of separate segments of people, what one can call factions – against the interests of other factions. This would be done by two structural elements in this new republic: a check and balance system within government (the division of power among the three branches of government) and by an expanded republic in which a great number of factions would exist, competing for governmental benefits. In such a republic, no single faction or combination of factions could dominate the politics of the nation.

This whole balancing act reminds me of a biblical passage: “I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents” (Matthew 10:16). Or stated more directly, one needs to be realistic when engaging in politics or any other interaction in which monetary or other valuable interests are involved. That is particularly true when dealing with people you don't know to be honest or do not know very well. As I have stated before, trust needs to be earned, not dispensed readily when important stakes are “on the table.”

So a tension is created when a civics curriculum is put in place that calls on a moral code in which the interests of the collective are promoted. The ideal of the code is one in which each of us is called upon to work for the common good; to act in such a way that the societal welfare becomes the standard by which actions are deemed to be good, evil, or somewhere in between. Such things as honesty, forthrightness, and loyalty are held as central values. And yet one must, while promoting such values, be observant enough to see and appreciate the possibility of dealing with those who don't hold these values and the fact that these people are all around us. We must deal with those who, by liberated federalist standards, do not live by a socially based morality. Take for example Robert Greene.¹ He suggests the following:

Conceal your intentions: Keep people off-balance and in the dark by never revealing the purpose behind your actions. If they have no clue what you are up to, they cannot prepare a defense. Guide them far enough down the wrong path, envelop them in enough smoke, and by the time they realize your intentions, it will be too late.²

Greene goes on to give the German leader, Otto von Bismark, as an example of someone who illustrated this suggested duplicity. According to Greene, this politician used a strategy of deception to gain power. What Greene does not address is how a general governmental atmosphere of mendacity weakens institutions – especially the democratic institutions – and what role such lying had in laying the foundation for what transpired in Germany during the twentieth century. Oh, I know; Germany and Bismark is not the only case of people engaging in deceit. As a matter of fact, we need to be wise serpents in all places and in dealing with all sorts of people. And when the prevailing political, mental construct is a natural rights construct – as it is in the US – the advice is even more prudent. That is, when a people hold to the notion that each of us is free to determine what moral standards we choose to live by, then – and our founding fathers would agree – we need to be on heightened alert. When it is felt that schools, for example, have no role in promoting a substantive moral outlook – even if such promotion is done not by indoctrination, but through instructional strategies in which students analyze value dilemmas – then the prevalence of self-serving attitudes should not be surprising. And the occurrence of deception will probably be more common than is healthy for our general well-being.

1Greene, R. (2000). The 48 laws of power. New York, NY: Penguin Books.

2Ibid., p. 16.

PRODUCTIVE AND JUST COMPETITION

Many of civic related concerns have to do with maintaining cooperative behavior between citizens by maintaining sufficient feelings of solidarity. Using federal language, the challenge can be described as counteracting social forces that tear at or encourage disunity within a federal association. This challenge can affect families, businesses, communities, cities, states, nations, or international associations (for example, NATO). There are a variety of sources for such challenges. There are jealousies, misinformation, conflicting aims and goals, corruption, use of excessive coercion, and so on. One source that is particularly subtle is competition. This last source is subtle because competition, per se, is not divisive. Ideally, competition can be a process by which the highest level of talent and other assets in the association come to bear in its striving to attain its goals. It can become divisive, though, if certain transcending rules governing competition are not adhered to. And what are those rules? One, given the context of the competition, is that it has to treat all the competitors as equals – equal in the sense that each competitor has an equal opportunity to win the competition. Two, the processes and standards by which the competition is conducted and evaluated need to be logically related to the prize for which the competitors are striving to attain. Three, the process needs to be as transparent as possible. And four, the competition itself needs to advance either the survival of the association and/or to advance the legitimate goals and aims of the association. This last rule needs to be explained a bit more.

For one thing, the consequences of a competition within an association might accrue short term positive results. In the long term, though, it might result in consequences that are not only negative, but also seriously threatening to the health of the association. And in this, lies the purpose of this posting. Take for example, the competition between states to attract businesses. This competition has taken many forms, but a common way is to put in place policies that lower the wages of workers by, for example, undermining the influence of labor unions. Recently, Indiana illustrated this by becoming a “right to work” state in which unions can no longer negotiate to become the sole representative agent for the workers of a business – that is, workers do not have to belong to a union in order to land a job. Consequently, in many states such as Indiana, that have been hostile to unions, collective bargaining has either become less effective or more difficult to conduct. Probably more than any other factor in the last three to four decades, this strategy has been responsible for the average median wages of workers to have first leveled off and then to have actually gone down.¹ The result is that inequality has been increasing during a time when production and productivity have increased. This, in turn, has resulted in the top income groups garnering ever higher percentages of the national income. The point is: this competitive activity by states is undermining a central goal of our nation. We are in effect less equal in terms of not only economic well-being, but also in terms of political influence. Our whole claim at providing equal opportunity has, with these developments, become less and less believable.

Really? Am I just rationalizing in order to excuse the shortcomings of some? Well, I have just become aware of how this competition between states is affecting even the ability of young people from lower income families to attend state universities. In the past, many states, through the efforts of their higher education offices, have provided financial assistance so that academically talented youths from lower income families could attend state universities. Through the reporting of Catherine Rampell,² I have become aware of organized efforts to dry up such assistance to poorer kids and expand the help to richer kids. “The share of state aid that's not based on need has nearly tripled in the last two decades, to 29 percent per full-time student in 2010-11. The stated rationale, of course, is that merit scholarships [exclusive of consideration of need] motivate high-school achievement and keep talented students in the state.”³ Rampell provides enough statistics to back up her claims – for example, about 1 in 5 rich kids (from households making over $250,000 a year) get assistance while only 1 in 10 kids from households making less than $30,000 a year get similar assistance. But my point is that this practice is a form of competition between states, not to attract talent, but to keep talent. The thinking is that these richer kids can easily shuffle off to highly respected universities in other areas of the country; they move to those universities and they don't come back. If, on the other hand, states can keep these students in their home states for their college education, they are more likely to stay in the state after they receive their degrees. At least, that's the thinking. The evidence, though, doesn't support this eventuality. It is needless to point out that the success rate for these wealthier students is much higher than for lower income students, although even richer kids don't do as well at these state schools than those who do go off to the more expensive, farther away schools. So, this form of competition, one that betrays our national commitment to equality, has become counterproductive. While the aim of the policy doesn't seem to be materializing, the policy will still be in effect for years. In the interim, how many poorer kids will be denied a real chance at economic success because they will be deprived of the financial assistance to attend state schools that at one time was there? Besides, one can justly question the sincerity of the stated justification for such a policy change. Is it just a way for those with influence, the wealthy, to get more of the resources that a state government is willing to distribute? Who knows?

Irrespective of its justification, I would judge such a competition contrary to the stated goal of equality that our nation claims it has. There is nothing intrinsically wrong with entities in a federal union competing. Competition motivates people to work hard and it increases the chances of entities developing their potential skills. In turn, such developments make it possible for organized people to do what it is they want to do successfully as long as the competition is productive and just.

1I claim this factor to be primary because I feel that all of the other factors, such as transferring work assignments to foreign workers, are negotiable developments that unions could have moderated and made less effective in lowering wages. I must admit a lack of expertise in this, but the decline of wages among American workers mirrors, in terms of timing, the decline of union membership.

2Rampell, C. (2013). Freebies for the rich. The New York Times Magazine, September 29, pp. 14 and 15.

3Ibid., p. 14.

SCIENCE AND/OR RELIGION

Some have argued that the belief some other people have in science amounts to those people making science a religion. I have never fully appreciated this claim. Yes, science does provide theoretical answers to many of the puzzling aspects of life, such as how all this stuff around us came about. When considering all the different forms of knowledge and the processes of knowledge acquisition, people who ascribe to scientific explanations and methods tend to place in priority that knowledge and those processes. They might almost label other accounts and methods as, if not illegitimate, inferior. And this priority extends not only in the way they view or study the physical elements of existence, but also how they view human behavior and human consciousness. The exclusion of other knowledge content and methodology, by the more “extremist” advocates of science, seems to place on science such a privileged position that it at least seems “religious” to those who observe this level of devotion.

I tend to agree that such an attachment does seem to exist and that it is problematic, but there is at least one aspect of scientific thought that is not religious – even for the extremists. The one thing all religions promote that science does not is a belief in a supernatural. Now, science does not deny the existence of the supernatural but, at best, it limits its judgment of a supernatural existence to the observation that if it exists, it does not fall under the purview of scientific study. Science is concerned with learning about natural existence, not the supernatural.

Therefore, science is a secular concern or field of study. It is not the only secular concern or field of study. There is historical study;¹ there is philosophic study; there is mathematical study, and so on. Each of these areas, as itself, is secular and does not pass judgment on whether there is or is not a supernatural realm of existence.

I have in previous postings gone over the essence of scientific substance or content and a description of scientific methodology. The scientific content, as most depictions of truth, can be structured as a continuum, going from the most abstract to the most concrete, by the following terms: paradigm, general theory, theory, generalizations, concepts, and facts. Some might use different terms; for example, the term law for generalization, but in the main this progression seems to be in play when structuring scientific knowledge. The methodology, at least as indicated by the standard arrangement of scientific research reporting, consists of

• reviewing theory to formulate hypothesis,
• developing appropriate experiments or other data collecting protocol by which relevant data can be gathered objectively,
• testing the hypothesis by analyzing the gathered data,
• determining the truthfulness of the hypothesis, and
• applying the result of the testing to either support or, if necessary, adjust the theory according to the results.

Actual operation of scientific research does not necessarily follow the above phases in cookbook style. Actual research can be quite messy and seemingly unorganized at times. But the logic entailed in the above process is adhered to and reporting of scientific findings is arranged according to this logic.

Now, and here comes the issue of this posting; nowhere in this process is there room for preconceived notions of what the truth is. Nowhere is there a call for inspiration, at least when it comes to determining what the truth is. If there is a problem with the prevailing theory – and that includes the governing paradigm – the theory is not automatically discarded or “overthrown” and it is not replaced by a theory or paradigm that is suggested by some belief in the supernatural. To attempt to do so is not science, it's political.

I bring up this issue because in Texas there has been a concerted effort by politicians and appointed officials to unduly influence the content of science curriculum and the purchase and use of textbooks in science classrooms. These politicians and officials are believers in either “creationism” or “intelligent design” theories. These theories question the Darwinian theory of evolution that has served as the governing paradigm in the study of biology ever since the middle of the nineteenth century. Motoko Rich² reports that, for example, these critics question the often cited evidence of fossil records that support Darwin's theory. They claim that the fossil data can be interpreted in other ways. I claim no expertise here, but even if this is true, the scientific process does not call for relinquishing the prevailing paradigm or theory, but it does suggest further study. It suggests reviewing research techniques. It suggests attacking the problem from a different angle. The reason the prevailing theory is the prevailing theory, in the first place, is because there are overwhelming and consistent findings that support the theory.

Technically, a scientific theory is not even considered “fact.” Theories are not facts; they are instead made up of generalizations that in turn are made up of concepts that are categorical representations of facts. In other words, facts are a far cry from theory. A fact is, for example, the lamp I am seeing across the room has a red shade. A generalization is, for example, if the temperature of water reaches a level of heat measured to be 100 degrees Celsius, the water will then boil (made up of the concepts water, heat, and boiling). A theory is, for example, the whole explanation of the state of organic life on the planet that we call Darwin's theory of evolution.

Now, if you have a religious motive and you find Darwin's theory offensive because it does not indicate any grand plan for life, as it is manifested, but instead a natural process that is quite arbitrary, then you might be tempted to find some problem with Darwin's theory. You might be tempted to bypass the scientific way of doing things and promote a non-scientific explanation for the way life exists on the planet. If you can cast doubt on Darwin, you can suggest that there are alternative ways of “interpreting” the data that, in turn, indicate a supernatural answer. Hence, the explanations of creationism or intelligent design take form. And under the guise of being “critical” and of promoting “critical thinking,” you can argue that in science classes we should present these alternative views and have the students study these views, debate them, and then they can make up their own minds as to what is true. The problem is that you are not abiding by the ways of science; you are instead using a subtle form of indoctrination under the guise of science. It is dishonest and does not belong in science classes.

Why be concerned with this issue here, in a blog dedicated to civics? Because with civics, one can find an answer for these religious advocates – and by religious, I mean fundamentalist religious advocates. Present your alternative theories in civics or history classes. This question of whether creationism or intelligent design should be presented in science classes has become a political issue. You can present the whole “theory” of creationism or intelligent design and have students review, debate, and arrive at their own decisions as to what should be taught in public schools. Through this strategy, the one in eight teachers who presently teach creationism or intelligent design can have their beliefs critically reviewed by students.³ Of course, such a study would also look at the meaning of science and what constitutes legitimate science content. Students, in this debate, would learn that words are important and what you call science needs to comport or, at least, account for what the practitioners of science mean by the term.

1I recently saw on CBS' 60 Minutes an interview with Bill O'Reilly in which he promoted his recent book, Killing Jesus. He was asked why he does not refer to Jesus as God, savior, or Messiah. He simply states that his is not a religious book; it is an historical book. Aired on September 29, 2013.

2Rich, M. (2013). Creationists on Texas panel for biology textbooks. The New York Times, September 29, National section, pp. 14 and 22.

3The rate of teachers who include creationism or intelligent design in their science instruction is reported in the Rich article that cites the research by political scientists, Michael Berkman and Eric Plutzer.

“MY FELLOW AMERICANS”

I have just returned home from a long car trip. One stop on our trip was a visit to Franklin D. Roosevelt's home and library. Of course, one needs to stroll through the gift shop at the end of seeing the exhibit and there I bought a souvenir coffee mug. On the mug there is a famous FDR quote: “The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” This is a nice sentiment, but is there any justification for such a contention? After all, such progressive aims usually mean tax dollars being taken from some to be given to others. How do we justify this type of policy other than to say it might make us feel better or that we have religious obligations to support such actions? After all, as I have stated elsewhere in this blog, secular reasoning – reasoning that does not impose religious beliefs on others – demands that government action promote societal welfare; that is, the policy needs to further ensure the society's existence or advance the aims and goals of its people. I choose to rely on secular reasoning when it comes to evaluating public policy. I believe, as an educator, that any attempt at moral education in our public schools needs to be secular in its approach – short of that, we are merely indoctrinating young people to our biased beliefs. Therefore, if civics instruction were to entertain whether or not FDR's words should be taken seriously, then his contention needs to be analyzed by secular standards. What could they be?

Richard Dagger¹ makes such an attempt of imposing secular reasoning to the question: do we have any obligation toward the less advantaged? He begins this analysis – by way of providing context – by simply claiming that we have an obligation toward others because of our right to autonomy. What he specifically claims is that individual autonomy is reliant on individuals respecting the demands of civic virtue – that virtue that is concerned with societal welfare. Why do we have such an obligation? There are several reasons: concern over corruption (the antithesis of civic virtue), concern over necessary sacrifice for maintaining national independence, and the factual reality that we are, no matter how autonomous we feel, interdependent in a variety of ways such as providing the rule of law, providing the common defense, providing protection from diseases and disasters, providing education, and providing a general cultural promotion of individual rights. These last realities of interdependence are all accomplished by communal institutions and manned by, for the most part, civic-minded individuals. All of these factors point to obligations based on practical concerns. Civic virtue relates, in terms of motivation, to those behaviors that make the levels of social trust and bonding necessary to meet these obligations that are inherent with social interdependence. But Dagger is still not finished in justifying us having special concerns for those disadvantaged fellow citizens. He approaches the affirmative position from the point of view that we have an obligation to better the plight of those who are less advantaged and live in our nation. He asks: why do fellow citizens deserve more assistance than those who might live in other nations?

Early on in this blog, I stated that liberated federalism argues we should hold a concern for the disadvantaged from the perspective that any one of us can find him/herself in a disadvantaged state. But there is more to it. As a member of a federated union, we have value due to our humanness, our potential, and our consent to belong to the union. Federalism is based on a societal union that is formed through agreement to a covenant or compact which obligates us to its terms regardless of what others do. Yes, as Dagger points out, there are a number of other justifications for privileging fellow citizens for special concern:

• the psychological bonds for fellow citizens; after all, we can't actually hold equal emotional commitment for every member of the human race – although in diverse nations, this is often challenged by having conflicting emotional ties encouraging us to include or exclude those who belong to other racial, ethnic, religious or other groups less identified with one's own identity –
• proximity of our fellow citizens – although given where you might live, citizens of other countries might live closer – and
• efficiency of sharing resources with those who live under the same national jurisdiction – although efficiency might be better served, for a variety of reasons (such as the distribution facilities available), by providing assistance to citizens of other nations.

But when we are considering fellow citizens, we are talking about a special interdependence, one of reciprocity. We are dependent on each fellow citizen meeting his or her obligation – such as obeying the law – in order that a society can function and our own welfare can have the chance of blossoming toward its potential. This reciprocity is further advanced by a system established under a federal model – one of consenting members coming together to form the societal and political union that define and constitute a national essence. Therefore, due to a variety of reasons, some accidental and others inherent in the nature of societies, we do have secular reasons to not only be concerned with all human beings, but also have a special concern for those with whom we share citizenship.

What does all this mean for civics education? I believe each of Dagger's reasons for having special concern for our fellow citizens should be shared with students. Students should then express their own feelings toward each of them. Perhaps using the emotional reaction that Americans expressed after such events as the Japanese attack on Pearl Harbor or al Qaeda's attack on 9/11 could be used as context for such discussion. Having been around for the 9/11 attack – I was teaching during that time – I can remember how people responded. There was a visceral reaction of anger and disgust and a lot of it had to do with the attack being directed against Americans. So there is an emotional link between citizens. It's just there. Good citizenship, according to a secular way of thinking, though, calls for a reasoned reflection on the part of citizens that would aim at justifying any special considerations people have for fellow citizens that extend beyond the purely emotional.

1Dagger, R. (1997). Civic virtue: Rights, citizenship, and republican liberalism. New York, NY: Oxford.

SHALLOW CLAIM FOR LIBERTY

Advanced nations and their social structures tend to be pluralistic, at least by historical standards. The economic opportunities that characterize these nations act as magnets culling immigrant workers from areas of the world where such opportunities do not exist. In nations where such diverse populations exist, they struggle to find some semblance of social harmony. In pluralistic societies, where a common vision of the good is difficult, it is highly daunting for a political system to count on such a uniting vision. At its core, this is the allure of a natural rights conception – or known philosophically as a liberal conception – of political governance. Where there is little to no chance of formulating a set of aims and goals that reflects the vast opinions and desires of a population as to what is worth attaining, then a system, according to natural rights advocates, should organize itself around the notion that everyone be free to define what is the good for him or herself. Of course, there is the exception to those values that seem to be universal; the value for peace and the protection of property should be recognized as transcending values. The value of stability, if you will, can be the basis by which a nation can be established and even advance as each member of the society strives to advance his or her interests. Perhaps the words of Michael Sandel can express this idea better:

Society being composed of a plurality of persons, each with his own aims, interests, and conceptions of the good, is best arranged when it is governed by principles that do not themselves presuppose any particular conception of the good; what justifies these regulative principles above all is not that they maximize the social welfare or otherwise promote the good, but rather that they conform to the conception of the right, a moral category given prior to the good and independent to it.¹

By the “right,” Sandel simply means what we consider our rights – those areas of behavior we are free to pursue, such as speech and religion. If one is at a loss in trying to promote a notion of the good authoritatively, the solution is to get the government, as much as is humanly possible, out of meddling with questions of what is good and what is not good, especially if any such effort interferes with a person's rights.

And here comes the word games: the Constitution identifies in its Preamble a list of goods and one in particular goes beyond the ideal of peace, protection of property, or stability. That good is the promotion of the general welfare. Given this aim, it follows that in order to pursue a more perfect union, we need to define – in particularly concrete terms – and promote something called the general welfare. This state of a general welfare is not stated in our founding document as individual welfare – as in a phrase, “to advance each citizen's opportunity to maximize his/her interests” – but it is stated as a common state inclusive of all citizens as a whole. Now, natural rights devotees might argue that only through a system that allows all individuals to pursue his/her interests (that is, through a free market) will the general welfare be pursued. But now, with this admonition, the “good,” in this natural rights perspective, takes on more substance. When one argues for such a system, a whole array of goods seems to come into play. To establish and maintain a viable free market, a whole style of life becomes operational. And not only is such a style extensive, but it is downright inimical to many people's vision of a good life. You can include, for example, traditional ways of life that one can associate with those immigrating from lesser developed nations.

This stream of argument that natural right advocates present, such as for liberty and getting government out of our lives, seems very shallow. When we view how the defenders of the free market have used government agency to further their aims in our history – the use, for example, of coercive means to put down labor unions or, more recently, the use of government to interfere with reproductive rights – then one wonders how sincere these claims for liberty are. For each of these uses of government, there are rationalizations, but I think it is quite fair to say that those in power, including those who lead in “liberal” economies, tend to lean toward the power of government when it comes to promoting their visions or versions of the good.

1Sandel, M. (1998). Liberalism and the limits of justice. New York, NY: Cambridge University Press. Quotation on p. 1. Emphasis in the original.