The federal judiciary has become dominated by what Glenn Harlan Reynolds calls Front-Row Kids—a credentialed elite with a prescribed resume.
Recently, Justice Scalia made a lot of news when he faulted Chicago deep dish pizza. He noted that it is more like a “tomato pie,” and “shouldn’t be called pizza.” (As a native of Staten Island, I couldn’t agree more!). But during his speech at the Union League’s 126th George Washington’s Birthday Gala, Justice Scalia spoke to a much higher power than pizza.
He opined on the relationship between civic virtue, or what he called “the Republican spirit” and a “successful republic.” Justice Scalia approached this topic in several ways.
First, he weighed in on the relationship between religious ideals in society and good government.
“Let me make clear that I am not saying that every good American must believe in God,” Scalia said in a speech at the Union League Club. “What I am saying, however, is that it is contrary to our founding principles to insist that government be hostile to religion. Or even to insist, as my court, alas, has done, that government cannot favor religion over nonreligion.
“It is not a matter of believing that God exists, though personally I believe that,” Scalia said. “It is a matter of believing, as our founders did, that belief in God is very conducive to a successful republic.”
Second, he commented on the bond between good government and the vigor of the people for a good government–this is what is often referred to as a sense of civic republicanism.
“You know what I worry most about is … the decline of the republican spirit,” Scalia said softly during a brief question-and-answer session.
“It doesn’t exist in our people with a vigor that used to exist. That’s what I’m most worried about, that we’re going to become just another, I don’t know, another undemocratic, politician-run state. Which our framers would never have supported. That’s why I think education in democracy, education in republicanism, is so important.”
To Justice Scalia, these are not idle philosophical concerns, but go to the core of what makes our Union work.
Scalia demurred when asked whether the country has passed a “tipping point” that would put it on a downward curve.
“The framers were very worried about whether democracy could last very long. The game isn’t up yet, 200 years is a good long time,” he said.
“(But) I don’t think we can be too cocky about America always being America. It’s going to change unless the people have the same determination to preserve liberty that the framers had.”
And what is at fault, in part, of the decline of this spirit? Scalia directs blame at the lack of civic education in schools today.
Scalia then launched into an analysis of how the founding fathers and leading teachers of the period viewed education and how far he believes educators, like courts have strayed from their original intentions.
He lamented that most students in elite law school classes he speaks at have never read the Federalist Papers. “It is truly appalling that they should have reached graduate school without having been exposed to that important element of their national patrimony, the work that best explains the reasons and objectives of the constitution.”
Quoting lexicographer and educator Noah Webster, Scalia said, American students “must know and love the laws, this knowledge should be diffused by means of schools and newspapers, and an attachment to the laws may be formed by early impressions on the mind.”
Scalia added that Webster prescribed a course of study rich in American history and the glories of the American system of government.
I can second Justice Scalia’s concern. In my constitutional law class, the overwhelming majority of students had never read the Federalist (not even Numbers 10 or 51!). Even more troubling, a few had never heard of The Federalist. I find myself having to backfill large amounts of what I think is very basic knowledge (how members of Congress are elected, how the electoral college works, etc.). But, better late than never.
Justice Scalia has sounded a similar note as Justice O’Connor, who since her retirement has led the cause of improving civic education. Through her organization, iCivics, Justice O’Connor has introduced and developed games aimed at teaching students about our Constitution, our government, and how to become more engaged.
In 2010, I co-founded the Harlan Institute, a non-profit dedicated to teaching high school students about the Constitution. I share the same concerns of Justices Scalia and O’Connor, and many other. Through the Harlan Institute, we developed an educational version of FantasySCOTUS–a Supreme Court fantasy league. Students across the country compete to predict the outcome of pending Supreme Court cases. Using our lesson plans, they analyze the Justices, write blog posts that mimic Supreme Court briefs, and engage in moot court debates with other students through video chats. We have worked with Justice O’Connor’s group, and many others, in an effort to ensure that vigor and engagement for our union does not fade.
Promoting and protecting civic education is a core of our republic.