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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).

 Notes:

  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 []

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Gabriel Conroy [pseudonym] is an ex-graduate student. He is happily married with no children and has about a million nieces and nephews. The views expressed by Gabriel are his alone and do not necessarily reflect those of his spouse or employer. ...more →

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25 thoughts on “Plausible Misconceptions

    • I disagree. That can be the result of mere ignorance, especially if we include within our definition of “mere ignorance” the likelihood of reasonable confusion.

      It’s commonly known, for instance, that in some cases a person’s spoken words can be used against them in a court — a discrimination lawsuit, for instance.

      Yet if we say spoken words are also sometimes protected by this nebulous thing we call “freedom of speech” and this other nebulous thing half-remembered from an ill-taught high school civics class called the “First Amendment,” then how do we square that with punishing people for things they say?

      Someone might make the understandable mistake of saying, “Well, that must mean that some speech isn’t protected.” That speech is used as evidenceof something else (intent, most often) rather than used as the direct basis for punishment is a pretty subtle distinction, one lost even sometimes on the very lawyers who gather and use that evidence.

      Then, of course, when you dig into the jurisprudence, we find out that indeed, some speech really isn’t protected. One of the categories of speech that isn’t protected is “fighting words.” Which sounds something like “hate speech.”

      That’s not the result of “active misinformation,” a phrase which implies somone is deceiving the public about this subject. It’s just complex, is all, and simple surveys with clumsy wording may very well obscure more than they reveal about the state of public education.

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      • I dunno Burt. I agree that it doesn’t have to be misinformation but there are plenty of prominent voices out there calling for various limitations on speech, including establishing laws other Western countries have adopted that wouldn’t pass 1st Amendment scrutiny here. Now I do think there’s more ignorance out in the general public than ideology but I don’t think that’s quite whats going on at colleges.

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        • Roy Moore, a former judge who’s running for the Senate, says the Constitution doesn’t protect the right not to salute the flag. That’s much worse than some college kid.

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        • I think the key here is to try to decipher whether the misinformation is willful or not. Mr. Moore, as Mike Schilling points out, is much more on the willful side.

          As for what’s going on in colleges, I suppose it depends on the specific student(s) or group(s) involved.

          I will say, in more of a direct answer to George Turner, that “hate speech” is one of those things I had in the back of my head when writing this OP, but I didn’t quite know how to fit it in elegantly. I do think the (somewhat) widespread notion that “hate speech” isn’t protected is due largely to the dynamic Burt describes (and to be clear, he’s elucidating how all that can happen; he’s not suggesting that it must always be happening that way). But I’m sure there are some who are being more willful.

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  1. An insight from a civil lawyer’s practice: from time to time, clients come to me with a dispute against another person and ask me “Have I been defamed?” They know the words “libel” and “slander” but aren’t always really clear on the precise definitions.

    But here’s the rub: they want me to go into court and get an order to stop the other person from saying these things. Which is pretty much the classic definition of a prior restraint. Explaining to them that we can’t get prior restraints because of the First Amendment is a tough thing for me to do and frustrating thing for them to learn. They want there to be a prior restraint against defamation and all of these high-falutin’ theories about freedom and liberty and truth and the marketplace of ideas don’t mean much to them when they’re suffering the sting of a half-true invective-laced accusation.

    I infer from the fact that I’ve been asked to go to court and seek injunctions like this so much, for so long, that this is a facet of American law that is widely misunderstood.

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    • They certainly don’t know about Sullivan either probably.

      I concur that a lot of people have a feeling of “that’s not right” on the law and are really angry when they need to be told about things like the Learned Intermediary Doctrine.

      I’ve had to explain jurisdiction a lot lately because of a Supreme Court case. Explaining Jurisdiction to non-lawyers is really hard.

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    • This is one of those things I didn’t know. Chances are greater than 50/50 that if 5 minutes before reading your comment, I had been asked whether someone could enjoin defamatory speech, I would have guessed yes. (Even so….can’t someone get a cease and desist order?….or is that something different?)

      I was thinking more along the lines of the government prohibiting publishing certain speech about the government and not about civil claims.

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  2. I yield to no one in my belief in the ignorance of the American public, but surveys like this don’t tell us much. As you say, respondents may not know what rights the First Amendment protects, but they have a tolerably good idea, if somewhat muddled, about what rights they have and that they are somehow protected by the Constitution. Chapter and verse, and the straightening out of some misconceptions, is for the professionals. And surely they know that there is a President, and a Congress, and a Supreme Court, and they probably know there are other federal courts as well. Maybe they think the alphabet agencies are a fourth branch of government, which is technically incorrect but not an unreasonable thing to think. Even the professionals sometimes think they kinda-sorta are, so I can’t get down on lay folk who reify a metaphor.
    I’m quite certain that the public’s actual ignorance, accurately determined, would be appalling, but I can’t get the vapors based on what surveys like this show.

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  3. 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.

    I don’t think the sort of person who knows what the FTC is would be the sort of person who would not be able to correctly answer the ‘What are the three branches of the Federal government?’ question. This isn’t an example of ‘being smarter than the questioners’….the three branches are fairly well defined in the constitution…they all just sometimes end up doing ‘the wrong things’.

    If someone said ‘Define the three branches and their role in the government’, yeah, some smart people might overthink the question and explain how the executive makes a bunch of rules, or how the courts often end up basically making laws, or at least regulations, if the laws are silent, but just the existence of the three branches and their names isn’t in dispute.

    OTOH, it does seem likely that some people said ‘The president, Congress, and the Supreme Court’, which is a) technically incorrect on every one of those, and b) entirely right in any meaningful sense, they just named the ‘heads’ instead of the branches.

    Weirdly, if you look at the constitution, it might be possible to logically infer that the state governments, in a way, are supposed to be the fourth branch. I mean, they are Article 4, coming after legislative, executive, and judicial.

    However, this falls apart if you keep going to Article 5, because ‘How to amend the constitution’ is a pretty abstract concept for a branch of the government, and they just get weirder.

    Of course, if you read the actual text of the constitution, it doesn’t name the branches what we call them anyway. E.g., it basically asserts that executive power _exists_, presumably as some sort of law of physics or something, and then _vests_ that power to Congress. The word ‘branch’ doesn’t even appear in the constitution except for the obscure rule that members of the House of Representatives (And now the Senate) have to meet their own state’s congress’s most numerous branch of legislature requirements, a rule I literally had never heard of until this very post.(1)

    1) A rule which, now that I think about it, appears to make a state imposing a Congressional term-limit legal. All a state would have to do is assert that someone cannot be elected to their state’s Congress if that person has previously served X years in the US Senate, and, tada, they also cannot be re-elected to actual US Senate either. I don’t know why no one’s done this. Wow I’m off topic, but whatever.

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    • I don’t think the sort of person who knows what the FTC is would be the sort of person who would not be able to correctly answer the ‘What are the three branches of the Federal government?’

      You may be right on that one. My original example was going to be the Federal Reserve, of which more people are more likely to have a passive, but withal incomplete, understanding. My problem was that what the fed does doesn’t fit my narrative quite as well as the FTC does. (I don’t believe the fed makes judicial-like determinations the way the FTC appears at first glance to.)

      Your reading of the mentions of “branches” is much more detailed than mine. So good work, sir!

      I’m not sure I buy the argument from your note #1, however. I understand that provision to be about who’s qualified to vote for certain offices, not about who’s qualified to win those offices.

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      • You may be right on that one. My original example was going to be the Federal Reserve, of which more people are more likely to have a passive, but withal incomplete, understanding. My problem was that what the fed does doesn’t fit my narrative quite as well as the FTC does. (I don’t believe the fed makes judicial-like determinations the way the FTC appears at first glance to.)

        It’s the same sort of thing there…_logically_, anyone who is knowledgeable enough to have a real beef with the Fed is knowledgable enough to know the three branches, and their beef would be something along the lines of ‘The legislature is supposed to make laws, and the executive is supposed to enforce them, not the completely unaccountable Federal Reserve!’ or something like that.

        That said, this country just elected Donald Trump, proving it’s entirely possible to take somewhat real problems and convince people of very stupid things WRT them. It’s entirely possible there are voters out there who think that the Federal Reserve is some evil branch of the government operating next to the executive and the legislature.

        Likewise, it’s possible, in your FTC example, that some people think ‘government bureaucrats ‘ are some branch of the government also…I was just basically thinking if they know the term ‘FTC’, they probably know how the government works.

        But, hey, a lot of people in this country appear to know nothing about anything, so, who knows at this point? If talk radio started talking about the evils of the FTC, at some point we’d have people chanting ‘dismantle the FTC’ (Just like they want to make the Fed entirely transparent via ‘audit the fed’, when real problem is the Fed’s priorities, which the government sets.) or something stupid. This hasn’t happened so far, but could easily.

        I’m not sure I buy the argument from your note #1, however. I understand that provision to be about who’s qualified to vote for certain offices, not about who’s qualified to win those offices.

        You are 100% correct there, I misread that entirely. No wonder I had never heard of it. That actually says that people who get to vote for the House (and later Congress) are required to be the same people (Or at least have the same requirements) as the people who can vote for the largest branch of the legislature in the state government.

        This raises the interesting question of whether or not a state has ever had separate voter pool for two different branches of their legislature, and thus if ‘the largest’ qualification has ever mattered. (I know at least one state only has one branch, but that presumably counts as ‘the largest’ one.)

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        • This raises the interesting question of whether or not a state has ever had separate voter pool for two different branches of their legislature, and thus if ‘the largest’ qualification has ever mattered.

          I don’t know the answer, but if there has been a state, or states, that did that, I’d bet antebellum South Carolina was one of them.

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        • Similarly the upper chamber had usually been appointed by the governor in colonial days, except in Rhode Island,
          Connecticut, and Massachusetts. Now the upper house too became elective, though on slightly different terms from the lower house: The districts were larger, the terms longer, and usually the officeholder had to meet more stringent requirements on age, residence, and wealth. In North Carolina and New York the franchise was also more restricted. Both states lowered the requirements to vote in a house election but
          retained the earlier property qualification for the upper house: 50 acres in the former £100 freehold in the latter. In New York, under this provision only 28.9 percent of adult white males could vote for the state senate in 1790, half the number that could vote for the house. In most states,though, the senates of the 1790s were fairly reflective of popular opinion and, in any case, power was concentrated more in the lower houses

          (page 10-11) of the PDF, page 228-229 in original pagination)

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  4. Lies, Damn Lies, and Statistics.

    The phrasing and framing of questions for a survey often have greater ability to sway the direction of answers to those questions than we care to admit. As both Burt above and Gabriels OP point out, most people do have a strong sense of the three branches of gov’t and a decent idea of the 1st amendment. And outside of forums for political dorkery (such as this, he says proudly), these issues don’t come up that often. And thus we can excuse most people from eloquent descriptions of the workings and bedrock of our gov’t.

    That said, there are people who should know better, such as former presidential hopeful Howard Dean. And a good civics class at the high school level would be most welcome by me, as sharpening people perception of these principles is, in my opinion, an unalloyed good.

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    • I hadn’t heard about the Howard Dean tweet before. Thanks for binging it to my attention.

      As for a “good civics class at the high school level,” I agree. But I have two caveats.

      One, we (as in all of us, not necessarily you or me) need to think hard about what we mean by “good.” There’s such a wide range of what people come into such a class already knowing, that the instructor will have to skip over some things that you and I might consider essential. For example, I had a passably good civics class in high school, but I don’t believe the instructor ever found time to talk about how much of the bill of rights was incorporated against the states via the 14th amendment. I suspect that’s partially because only a few of the students knew enough of the basics for that particular tidbit to have much meaning. (I suspect it also partially may be that the instructor didn’t know about it.)

      Two, my working hypothesis is that subject like civics are best taught and learned through constant engagement. By the time I graduated high school, I had a pretty good command of what our government did and how it did it and why it was constructed the way it was. But that wasn’t because I took a good civics class. As I just said, it was indeed “passably good,” but by itself it couldn’t have taught me even the basics that the instructor actually did cover. That’s because my knowledge was reinforced repetitively through my history courses and watching the news.

      A good civics class is a start, but it shouldn’t end there. I realize you’re not saying it should end there. You’re just saying it’d be a good thing to have.

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