MOVEON AD AND POPULAR CONSTITUTIONAL KNOWLEDGE

This "Bush in 30 Seconds Ad" expresses an idea of constitutional law that has inspired public educators throughout American history -- the idea that ordinary citizens can use constitutional principles as a guide for their electoral decisions, especially when politicians have overstepped the bounds of their authority. The roots of this idea are part religious, part early enlightenment, a combination of protestant textualism and a Spinozan belief in the power of a re-oriented civil religion that can find expression in a public political catechism.

Successive waves of attempts to reprint and distribute the Constitution have shown the periodic appeal of this idea. My two favorite historical examples of this idea are attempts by corporations and anti-FDR types during the New Deal era to provide cheap editions of the Constitution to the reading public in an effort to remind them of the dangers of "socialism," and the "Liberty Bill Act," originally dreamed up by some Virginia elementary school children and picked up by some members of Congress eager for some nice photo ops, which would put an abridged version of the bill of rights on the back of the one dollar bill.

The idea is an appealing myth, to be sure, but it has several flaws. First, the concept of interpretation involved in such a view is too simplistic -- akin to Justice Roberts's claim in U.S. v. Butler (1936) that interpretation consists in "lay[ing] the article of the Constitution which is invoked beside the statute which is challenged and [. . .] decid[ing] whether the latter squares with the former." One of the reasons why such a conception is simplistic (for everyday use at least) is that most actions that would be challenged are not so blatantly unconstitutional as to allow for such an approach. One of the functions of an established Constitution is to narrow the range of permissible official action, but once those rules are accepted, most of the important contestation takes place in areas of uncertainty. Presidents don't simply try to fire Supreme Court Justices for rulings they don't like, for example.

Perhaps public knowledge as a whole helps to create the conditions under which the contestation is narrowed -- the idea of a citizen reading the Constitution and exclaiming "He can't do that!" might have a regulating function even if it is not common at all. Especially during crisis times, however, the area of uncertainty widens, so that even such actions as Lincoln's suspension of habeas corpus (probably a usurpation of a congressional function) can plausibly be described as constitutional even if they conflict with easily available textual meanings.

Secondly, the myth is misleading because it is too private. If you've ever yelled at the newspaper or the radio over breakfast (I have), you can understand the appeal of the ad. Nonetheless, effective, public constitutional meaning is not produced at the breakfast table; it's produced by mobilized groups. One important group is, of course, legal professionals, but their views shouldn't be mistaken for the sum total of constitutional meaning. (People like James Wilson thought that an appropriately trained profession could spread legal enlightenment throughout the public sphere, but that's another story.) Political parties, interest groups, and social movements all play their part here. Constitutional meaning is a cooperative, public product.

I still like the ad, though.