This year’s Law Day theme calls attention to key factors — cornerstones, as it is put — in the maintenance of democracy: civics, civility and collaboration. When citizens know little or nothing about the political society and its institutions, when they cannot work together to achieve results on important public matters, when they refuse to engage in civil relations with one another, democracy falters and dies. The reality is that democracy never completely dies all at one time or in one instant. Its values, ideas and institutions are slowly destroyed bit by bit until one day you wake up and realize it died sometime in the night while we all slept unawares. This year’s incredibly rich theme encourages us to think about the importance of, and the ways we can foster, three key features of democratic politics.
The theme also pushes us to clarify what we mean by “democracy.” I am always troubled by the way we toss around that word, especially when used in relation to a nation founded on a Constitution explicitly designed by its framers to avoid runaway democracy. The document they produced sought to cabin democracy in multiple ways.
Consider the following provisions of the original Constitution: the creation of three branches of government with only the House of Representatives the product of direct popular vote; the much-praised checks and balances designed to make sure popular passions never resulted in national policy without first passing through a gauntlet of “wiser” men (they were all men) thought to have a more stable stake in the welfare of the nation; the makeup of the Senate, which gives inordinate power to small states representing a minority of the population; the indirect election of senators (not changed until the passage of the 17th Amendment in 1913) so that the upper house could act as a mechanism to “cool the legislative tea” (as saucers were used in the day); the bizarre institution of the Electoral College that withdrew from the popular vote the selection of the chief executive officer of the nation and has resulted five times in the defeat of a candidate who won a majority of all votes cast; a bill of rights that (as John Marshall recognized) anticipated Supreme Court rejection of popular laws that run afoul of what the (unelected) Court thinks the Constitution requires.
The Preamble to the Constitution amounts to a statement that “We the People” have chosen to place limits on our own power to do what we want, so that “a more perfect union” and “domestic tranquility” could be attained. From the beginning the United States was not a democracy, but a republic, a system of (very) indirect rule by the people.
Real democracy would, at the very least, require universal adult suffrage in every electoral district, without artificial barriers designed to make voting more difficult. It would require those voting districts to be based on reasonable boundaries, not on which party has the legislative power to twist and stretch districts to maximize their electoral success. It would require that each person’s vote carries the same weight as every other person’s vote, an electoral system where those with extensive resources don’t control the selection of candidates or dominate the platforms of information and discussion. It may require much else, too, such as a system where outcomes in some states do not regularly decide national choices. But we don’t live in that democratic country right now, and, really, we never have.
The nature of our system aside, the Law Day theme certainly captures key components of the kind of republic we hope to be.
“Civics” refers to knowledge of the fundamentals of American government and politics together with the skills necessary to thrive in a political society such as ours. A course called “civics” once formed a part of the standard public (and private) school curriculum, but it slowly fell out of favor in the 1960s and 1970s, mostly because of the tedious (and often indoctrinating) way in which it was taught, the assiduous avoidance of controversial political issues, and the obvious presupposition in the classes themselves that questioning the existing system was not an option. It also didn’t work.
Voting rates fell throughout the middle of the 20th century and students’ knowledge of the basic facts about American government (three branches of government and so forth) shrank. There was a resurgence in the 1980s and 1990s, when studies revealed the depth of ignorance among students and adults of the basic details of our political system and its history. Several organizations sought to reimagine civics instruction and Congress apportioned money for civic education. But with the increased polarization in Washington and the nation, civics education became the hostage of the culture wars and the valuable instructional materials that had been produced by civic education groups came to be viewed as ideological weapons favoring one side over the other.
With no agreed-upon curriculum, civics withered. A smart society would ask itself why. Why do those in power want, or allow, the citizens of this nation to stand in ignorance of the very way in which this nation runs? Why would they work so hard to withhold the power of knowledge and the vote from the very people that should have the power to decide their own future?
The necessity of collaboration lies in the fact that humans often disagree about the need for, and the appropriateness of, action to address issues facing their society. Is it not collaboration that forms the heart of any successful joint endeavor? Indeed, it’s hard to imagine any system that can survive without collaboration (think of the meaning of “collaborator” in Vichy France). Collaboration must be given; it cannot be forced.
Action in common becomes impossible when people refuse to compromise to move forward. When lines between people harden, when deep divisions split society, when each side to a dispute has its own set of “facts” so that there is no shared basis from which to start, collaborative endeavor of the kind necessary to tackle the problems facing a community or nation falters. It is when “democratic” solutions cannot be found that autocracy begins to appear preferable.
The term “incivility” is often used as a substitute for bad manners in public and crudity in speech. Yes, our public discourse has gotten uncivil, with plenty of disrespect, foul language, and expressions of hatred salted into outrageous claims made by angry demagogues and their imitators. In recent years the media (including social media) has been invaded and occasionally dominated by this sort of incivility. We have even seen the arrival in Congress of people whose métier seems to be such incivility, carried into office by those who somehow equate being rude, hateful, insensitive, and crass to being strong and principled.
But incivility goes deeper than flamboyant conduct and rude behavior in public; it is more than a failure of manners. Incivility involves the refusal to enter into civil association with another, a denial that the other person is worthy of a role as your collaborator on important public business. The uncivil refuse respect to those who disagree. This refusal of respect, this denial of civil value, prevents the kind of working together to achieve public ends that a democratic republic depends upon. And because one’s opponents can be rejected as good citizens (they are more likely to be castigated as traitors), incivility fosters the turn toward autocratic decision-making and autocratic forms of politics.
Is there a way out? We confess to being pessimistic about this. We fear for the future of even the modified, toned-down democracy we have in this country. We see civic knowledge dwindling as incivility and failures to collaborate increase. We hope we are wrong. Certainly, we should all do what we can to revivify civics, civility, and collaboration, for they are the cornerstones of our experiment with democracy, however attenuated. The fate of that experiment lies in the hands of We the People. Are we up to the challenge?
Langston McFadden is MCBA President and Kevin Ryan is MCBA Executive Director.