John F. Kennedy Library Foundation; WGBH Forum Network; Justices Sandra Day O'Connor and David Souter on Civic Education

We are honored to have with us tonight retired Supreme Court Justices Sandra Day O'Connor and David Souter. They are here to discuss their shared passion the importance of civic education Justice David Souter recalls that when he was a boy he learned the lessons of democracy and the functions of the three branches of government at a New England town meetings. He's call those meetings the most radical exercise of American democracy that you can find. It didn't matter if someone were rich or poor young or old sensible or foolish. These meetings were governed by fundamental fairness. Today when two thirds of Americans can't name the three branches of government the rebirth of civic education is needed to ensure as Justice Souter is said that the nation has judges who stand up for individual rights against the popular will. Justice O'Connor was even blunter. When only one in seven Americans knows that John Roberts is Chief Justice of the Supreme Court.

But two thirds can name at least one judge on American Idol. It's time to re educate the American public. Sandra Day O'Connor was born in El Paso Texas and spent her early childhood on her family's cattle ranch in Arizona. She received her B.A. and law degree from Stanford University before settling in Phoenix Arizona with her husband. She served as an Arizona assistant attorney general in 1974 ran successfully for trial judge the position she held until she was appointed to the Arizona Court of Appeals. She was nominated to the Supreme Court in 1981 by President Ronald Reagan and confirmed by the U.S. Senate 99 to zero. She making her the first female in our nation's history to serve on the highest court. Justice O'Connor retired will. Justice O'Connor retired from the court in 2005 and has been known to refer to

herself as just an unemployed cowboy cowgirl. But as our moderator recently wrote in The New York Times Justice O'Connor basically lives in airplanes traveling the country in support of her causes. Let me read you one newspaper article that illustrates that commitment. In September Justice O'Connor visited Wrigley Field in Chicago to attend a Cubs game. Wearing a royal blue Cubs jacket she delivered the game ball to the umpires on the field and then visited the broadcast booth where she delivered the following commentary. I never thought I'd see the day when we stop teaching civics and government. Now it could be a little boring how they were teaching it but nonetheless it is an important function of the schools. And then Justice O'Connor suddenly interrupted herself who big get out there. You have to love a Supreme Court justice who jumps in to give the play by play at a Cubs game.

David Souter was born in Melrose Massachusetts he received his B.A. and law degree from Harvard University and was a Rhodes Scholar at Magdalen College Oxford before settling in New Hampshire where he served as attorney general and on the state Supreme Court. He was nominated to the U.S. Supreme Court in 1990 by President H.W. Bush. Scuse me George H.W. Bush a moderator has also written about Justice Souter just after he announced his retirement in 2009 she called him quote perfectly suited to his job. His polite persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the cases relevant to it. Far from being out of touch with the modern world he has simply refused to surrender to surrender to and control over aspects of his own life that give him deep contentment hiking sailing time with old friends reading history.

These days Justice Souter is doing some of the things he loves but he is also very occasionally speaking out about some important issues. At a commencement speech at Harvard University this past May Justice Souter spoke out about the different modes of constitutional interpretation. Washington Post columnist E.J. Dionne called the speech remarkable one which should become the philosophical shock heard around the country. Our moderator tonight Linda Greenhouse who I've already quoted literally is one of the foremost authorities on the Supreme Court reporting on the court for the New York Times from 1978 to 1998. She won the Pulitzer Prize in 1088. Thank you it's a personal thrill to be here really. You're in the Kennedy Library on the 50th anniversary of his election. I was a young teenager at that time and I have to say that. He did inspire my own interest

in public affairs in the public life of the country. And I remember my friends and I school you know hanging on every development of the 1960 campaign and the start up of the new administration and that's a kind of a deliberate segue into our. Our topic tonight which is the civics education deficit. In the country schools and you know just kind of makes me wonder whether the same. Energy and enthusiasm with which. I in my 12 and 13 year old friends back in 1960 approached what was going on in the country based on some knowledge of what we had been. Taught in public school whether that still exists today so I'll just start off by asking both of you since you've made this really a project of your of this phase of your professional careers. What. Motivated you to choose this.

Topic as something you're really devoting yourself to. We start. Public schools in this country. In the early 1900s. On on the basis and. On the basis of the arguments that we had an obligation to teach our young people how our government work so they could be part. Of making it work in the future. That was the whole idea that was the justification for getting public schools in this country. And I went to school there weren't any out on the Lazy B Ranch. So I was packed off to my grand mother in El Paso and went to school there and I am a lot of civics but it was largely Texas. I got so tired of Stephen F. Austin. I never want to hear another word about it. But I mean it just was endless. But remember the Alamo doesn't help much. No no no Santa don't you. We

were in El Paso. So. Anyway we had a lot of civics in my day and I guess I just thought. That was what schools were supposed to do and. I was done. To learn that the states no longer make civics and government to require a. High school. And we had. A lot of concern about. What young people were learning. And. I can understand why some of it was getting boring. The leading. Textbook. For civics was seven hundred nine pages long. I'm sorry you can't give back to some young person and expect them to just read it and absorb it it doesn't happen. So I thought we need a little help. And that's. How I got involved. And you recruited your colleagues.

Well yeah she got me into this. I mean really she did. I didn't have any sense of what was going on in civics teaching in the United States I remember but five or six years ago just as O'Connor just convened a conference in Washington excuse me to address the threats to judicial independence which seemed to be snowballing. And the the most significant thing the most shocking thing I think that I learned the first day that we were there was the statistic that you've already heard this evening that. Depending on who doesn't measure it only above two thirds at best 60 percent of the people in the United States. Can name three branches of government. They are simply unaware of a tripartite scheme of government and separation of powers. So the implication of that for judicial independence is that. If one

does not know. About three branches of government. And the distinctive obligations of each branch. In talking about judicial independence makes absolutely no sense whatever. Independence why independence from what independence for what reason. You get absolutely nowhere because there is not a common basis for discourse. And when I and others left that meeting we realized that you know we had a lot to worry about but we had a broader problem and have only become. More. It is a serious problem or a reflection of. The nostalgia for the way we were. But my awakening

started at that conference. Now there is one other little. Part of the story. American high school students were tested along with about 20 other nations a few years ago. And they were the bottom 20 nations in science. And it was frightening. And we have to do something. Well you know what that means. Money federal money money to give. Based on good test scores in those schools math and science I'm a Tost in reading. You're talking about the no child left behind No Child Left Behind. You've heard of and Matt was there. And. No doubt but.

The problem was that. It turned out. That because. None of the federal money was given American history or government. The schools started dropping it. And. Those states today no longer make civics and government a requirement for high school. Only three states in the United States require it for middle school. I mean we're in bad shape and we need to do something. Well you are doing something for us. But I know these are the relevance of No Child Left Behind I think is is indicated by what just as O'Connor said. We've got a kind of testing culture in American schools which is all of the good subjects of science reading and and math which are being tested. The effectiveness I don't know what the objective is is obviously OK. The trouble is that as everybody says schools have a tendency to

teach to the tests. And if if finances or educational ratings or other other sort of measures of decency in excellence. Are going to be tied to the tests on these three subjects. The natural human tendency is that everything else is going to get short shrift. And I think we have to be careful not to suggest that the No Child Left Behind is the source of the problem because. American schools started dropping the teaching of civics as as we remember back I think around 1970 there was there was a series of conclusions drawn by educators to the effect that. Teaching civics really had no effect. In fact. On what people what young adult people ended up knowing about their government. This seems counter-intuitive but that was the theory and that's why that's why civics started getting dropped.

The problem with No Child Left Behind for for those who want to revive revitalize civics education is. You've got to find some room in the school day to fit it in and your competitor is in effect. No child left behind in the subjects which are getting tested. That suggests an ultimately pragmatic solution and that is you better start testing ons and civics. Right. And the only good news I guess in this particular tension. Is that there isn't an absolute tension between fulfilling No Child Left Behind and finding the time for civics. The fact is a lot of a lot for example of the of the material that can be used for the we'll call it the reading segment of No Child Left Behind can be civics read 700 pages at a gulp. But there's there's a way to there's a way to infiltrate. No Child Left Behind.

Will some civic So it's not it's not absolute opposition but. The problem has got to be I think faced of how you provide an incentive. To these school administrations in the school districts. To work this in. And I use the the reference to administration advisedly because one thing I've learned just from being on a on a group in New Hampshire that is is trying to beef things up. There is that the civics teachers are out there and they are dying to teach. And I happen to have met some both in the grade school level in the high school level. And you know they're raring to go. We do we do not have a problem of conversion among teachers. And what we've got to do is find a way. To find room in a finite school to get this done. And as I said

at the end of the line we've got to have the people don't like to use the word testing anymore they like to talk about accountability. And but we gotta get a civics test. Squeeze back in and you're directly involved in in a curriculum reform effort in New Hampshire is that. Tell us a bit about that. I'm a Johnny come lately to it in a way because it was a group formed by an organization called Supreme Court society which is a somewhat of a historical society but a of the New Hampshire Supreme Court but a society that wants to have some. Public relevance beyond even the teaching of history. And it took up as a project before actually before I had retired a review of New Hampshire curricula practice. And the question is there something useful we can do. And that process of examination as I said

I I joined up when I when I left Washington. And I have at this point a fairly good sense of what is going on in New Hampshire schools and I see that some teachers I've actually met a lot a bunch of kids at some classes I've gone to. So and I think by the way to do just not leave the subject hanging. What a group like mine can do and what I suspect a group like mine can do in probably most states. Is not convinced teachers that they ought to teach civics. That's there at least in the Hampshire experience. We don't have to sell at. What we have to do is provide in effect the whole teaching apparatus. And incentive to make room for this. And the second thing we got to do is provide them with the materials to teach from. There. There is there simply is not readily available standard

universally accepted textbooks of the sort I think I remember. Of course there is no there is no testing in New Hampshire like most states drop testing from civics. And we've also got to provide if we can do it and raise the money to do it. It kind of continuing education scheme for the teaches of civics. To get them together very much like what the Supreme Court of the United States has historical society does for teachers of constitutional history. And and give them some beefed up education of their own which they are dying to have. And so that's where I think we can do something useful. And my guess is. That what is missing in New Hampshire and what would be accepted by the educational systems in New Hampshire is probably going to be true in most states.

So the effort would be to kind of model some best practices that could be. Explored as a lot that another idea. Sure you do. Well. You want to know why we write concurring opinion by the way. I think. Young people today. Like to spend time in front of computers and video. And in fact they spammed on the average 40 hours a week doing mad if you believe that that's more time than they spend with parents. And so I think we have to capture some of that. And. I. Have organized a program to do that. And to put. The material. For civics. Education. In a series of gangs that kids can play on computers. And believe

me. They. Love it. And if you want to look at it and if any teacher wants to look at it. It's WW II civics dot org. And it is Babbles. You really are. I actually. Carry for the site where I live. I have heard other people say that. Well. Justice Souter doesn't actually have a computer so this is all lies. So you got to know about. That's why I said other people. That I did go on the website and. It's really it's very engaging and it comes with curricular guides so that teachers can use it as as real material. I went on the one about. The judicial system and it's a series of actual Supreme Court cases where. There's ways that you click on the various arguments and students are asked to pick the best argument to support such and such a proposition and it's really I found myself really getting

into it. So it's really a success. I think and can be except. Do you know what the worst bureaucracy in our country is today. It's this goals. There in 50 states there is not one state where there is one person in that state who can tell us what to do and they have to do it not want. We are organized with separate individual school districts. We have. Close to up. You know. Many hundreds in my little state of Arizona. And so to get something like this conveyed to all schools means you have to contact each one. And it's kind of a nightmare that we're running into with my program. How do you. Get everybody acquainted so I have share people now. Forty nine of the 50 states now whether they'll succeed in contacting all the schools remains to be seen. Maybe you can

volunteer. How closely have you been involved in actually. Doing the gaming and deciding what news. Well I have actually sat and. Previewed some and made suggestions on some I mean I'm not. We have. Experts like. MacArthur Genius Award winners who are better. At doing this. But I have. Participated in some. To figure out what we ought to do or not get. Justice Souter talked about the impact of. The deficit in knowledge about the corps. And obviously that's that's one thing. Are there other particular deficits that you've noticed as you talk to people or. Follow this issue. Yeah oh it's a total no to start where they don't know there are three branches of government. We've already covered that. And even if they do. How the courts work what do they do.

Who is in charge. Are they approached in the case of Congress they don't know how things happen. And you have to I don't either. Well. Not much done. Yes. But now and then there's a little trickle down somewhere. Anyway we know what's happened. Right. And so there's a lot to learn. And things really you know things really have changed again from the time when we were kids. When I say things have changed not merely the dropping of teaching but the resulting deficit. One of the difficulties and these that I've found in trying to put all of this in perspective is. That we have much better studies about what's going on today. Than we had about what was going on 50 years ago people weren't making the same kinds of surveys or at least I have run into them. But I I have

been impressed with with one summary which went through a series of rather detailed survey findings in the mid 90s and the conclusions to be drawn from it were were summarized by by one of the educators in the field and it will be Gholston in the following way. He said that the. The the the numbers seem to show that. The degree of civic and broader political knowledge on behalf of. A high school graduate in the mid 90s. Was equivalent to that of a high school dropout in the 1940s. Wow. And the degree again of comparable knowledge of a college graduate in the mid 90s was about that was about at the level. Of a high school graduate in the 1940s. And if if if anything needs to be said.

What is shocking and dispiriting about that is. Bear in mind that during the same period of time the growth. In the availability of higher education was explosive. And yet in effect what we've had is the level of collegiate knowledge dropped in high school and high school drop. To drop. Something really bad has happened. In preparing for this. Kind of. Cast a wide net and try to find some other resources that are out there just to get a sense of. How broadly this problem is being recognized. And there's actually there's a lot going on. I noticed that Richard Dreyfus the actor. Has weighed in on this with the set something up called the Dreyfus initiative which is a curricular development. Program I looked at that Web site. And then the judicial system in Maine a coalition of. Federal and

state judges to organize as the main federal state judicial council has started a program of. Video. Interviews of judges talking about. Their life and work. Basically And it's it's really engaging they had one judge. A state judge and I. Think it was they would talked about being a troublemaker in high school and dropping out of college and taking a long time to get his act together and eventually obviously becoming a judge but the point was to make the judiciary. Not seem something. You know people are born with their robes on or something but to give citizens the sense that. These are real people doing. A job for the public who are. You know more or less approachable and it can be sort of understood on a on a human level. And I wonder just looking at the Supreme Court for this is it we seem to be in an era when a number of justices.

Current as well as retired are out and about and making the court. Maybe a little more accessible and you've both been around long enough to see that as a trend this wasn't something that was so true and when both of you became judges and I just be interested in your reflection on whether there's anything that the Supreme Court itself either institutionally or. As individual justices can can do to address this. Well it was interesting because. I'm not in Washington D.C. all the time anymore just now and then. And I recently was there and I sat in the court room to watch an oral argument. And I sat there and looked up at the bench. Nine positions. And it was absolutely incredible. On the far right was a woman. BOUM BOUM BOUM near the medal was a woman. On the far left was a woman. Three of them. Now

things are bad. It was incredible. And Matt. Took the Nark took the 191 years to get first. And we're moving a little more rapidly. Now I was pretty impressed. Look at this group here I'm here for diversity. Thank you thank you. There. So things are happening. So so not extract or extrapolate from from what you said the court being able to sort of model. Well I just think that the image that. Americans overall have of the court. Has to change a little bit when they look up there and see what I saw. I thought that was a pretty big change course not too many people get the chance to actually. See what they were. Sakit everybody. So here are some course here we are on and on C-SPAN and you know C-SPAN has kind of a dog in that

in that fight. Right. When you bring the cord into the living rooms of America. Which I hope so you. Know. Well I know. That. Looking. Looking at the election this fall on some of the judicial. Issues for instance what happened in Iowa. Where. Sitting judges were thrown out in their retention. That is another subject on which I've been trying to be helpful. How we select state court judges. Now this is a really important topic. And. It seems to me that many of the states need to consider some changes. When we started out the framers of the constitution got busy and designed a

federal system. And when they came to their judicial branch they provided that the judges would be. Appointed by the president with the advice and consent of the Senate. No election of the judges right. Now election. And the original 13 states all had similar systems only closely related to the ban. No election. Now. A few years appoint by. And. All of a sudden. We had. Andrew Jackson and he saved us down in New Orleans that was good. But you know what he did. He didn't. He thought we should elect our state judges. And he was the one who went all through the south and said Now you want to change an elector during. The first state to do that was Georgia a bunch of others followed suit and now what do we have. We have bears. And many states. I make it

about 20. Still have popular election of state court charges. And that means campaign contributions. They run for office they have to get money. Who gives them money. The lawyers who appear before them. Some of the clients that appear before them. There was that case that the Supreme Court had ordered or done from West Virginia. Big judgment. Against Massey Coal Company. 50 million or something of the sort. And the. Chairman of Massey Coal wanted that judgment was in our trial court in West Virginia. And in West Virginia they just have two levels of courts the trial court and the Supreme Court. And Massey wanted to appeal to the Supreme Court. That's fine. It's a five member court. And there was going to be an election at the next general election and one member of the court had to run for office as. Well.

Massey Coles chairman gave the man about three million dollars to help with his election campaign in the little state of West Virginia. And guess what he won. You know big surprise. And then the case was heard and somebody on the other side said to. The. Re-elected justice Well maybe you should recuse yourself because of these camps. Oh no. I can be fair. So he heard the case and in a 3 to 2 decision. I. Did not over. He voted to overturn the judgment against Massey with the participation rate or 2 decision of this newly elected judge. And the other side. Filed a petition with the U.S. Supreme Court saying. We were denied due process here. Now. Hard pine to make. I'm glad I wasn't sitting on the court for that. If that's.

What the court ultimately decided that was correct. There was a due process. And that means that states are going to have to be a little more careful about how they organize their courts and their was the right signal to stand. But many states have their election and judges and maps not a good idea. I would like to see more states adopt what we call a narrow selection system where. There isn't a bipartisan citizens commission. Formed. That will receive applications from people who want to be a review of them. INTERVIEWER people make recommendations to the governor who can appoint from the. List of recommended people and then typically in these so. Systems. They will serve something like six years and then have to stand for a retention election. And they can be ousted. And that's what happened

in Iowa. Their Supreme Court is a merit selection system. And three of the justices. Were up for a retention election the court had unanimously. Decided a case involving a gay marriage law and it irritated some voters in that state and they campaigned against these judges with the retention. And a majority of the voters coming out. They said no we don't want to keep them. So that was a big signal. Yeah I what I wanted to ask you about that because the so-called Missouri plan the marriage selection and retention that Iowa has has been held up for years by you and others as the preferable way to go and of course what happened in Iowa. I mean yes some voters didn't like the. Outcome of the same sex marriage case but what I think kind of more to the point outside groups came in. Yes to to use the

election to teach a lesson so I will teach a lesson. I spent a lot of money. The judge is running for retention had never encountered anything like that and they didn't do much in response. Yeah they were caught the problem Blackfoot. So I guess it raises the question in these days of. You know very aggressive money laden judicial campaigns whether the Missouri plan still holds up as a civic improvement or does it does. Arizona has it and I watched the progress there. It doesn't mean you can't have a problem you can but it is so much better than the alternative. You can imagine but it tells me that you have to be wary. And if there is something like what happened in Iowa. Those who were hoping to be retained better be active. And better do something. In response. So they need campaign committees and they have you could you should see if there's

going to be a major effort. You see them yes. So you're kind of back in the soup. I mean it's not as bad because you get over the hump and then go back to where it was. But. It's not going to happen every time. Just to draw a link between that sort of problem and what we were talking about earlier I mean do you think that. If the public has a better understanding of the role of the judiciary through some kind of education that this sort of thing. Could be mitigated in some way or if an issue is hot enough. Does it just kind of overwhelm. Well occasionally. In our country a marriage or something like that and. Voters can get pretty excited about some of those things. Just to say you were a state judge for years in your career now you were appointed you know it was I was going to.

Write it without a retention election says that New Hampshire is just plain old. Essentially it's the federal system except there is a mandatory retirement. So I didn't have to face that. But you know I agree with Justice O'Connor that if you're going to have an elective system. Try to have the Missouri plan that's the best way to do it you still can't make a silk purse out of the year but at least you're a long way a little bit. The Missouri plan and in any system even with retention elections. Is is in tension with the sort of the the the the fundamental understanding that animates an appointive. System with life for a long term appointment and that is the understanding that. When the heat is on. We tend to do the wrong thing.

We get excited. Our judgment evaporates. And that is why. You want a branch of government. Which has reference to principles that are going to win you or be in the heat of the moment. To say wait a minute. You just violated your own rules. And if you cannot have a branch of government with the power to do that. And with the incentive to do it knowing that those who make the declaration will not be thrown out on the street the next morning. You in fact are compromising the very concept behind a rule of law or a rule of enduring law. So that's the fundamental problem even under Missouri ploy and. The the the the development that has exacerbated that problem is the. Development of money in judicial elections which has in its turn been

exacerbated by. The recent development in the law which took place after both Justice O'Connor's and my departure but on which we had expressed opinions earlier. To the effect that corporations cannot be limited in the kind of expenditures that they make for political purposes. And if that were not sufficient exacerbation that. Combined with the legal avenues No. Disguising the sources of political contributions. Makes for. A a very general threat to political integrity and a particular one to the judiciary. How does one respond how does the judiciary respond if the judiciary is a political entity can do anything about it. But there is one. Authority that the judiciary has got to start think of you thinking of using because I assume the occasions are going to arise. Think back for a second

to Justice O'Connor's reference to the to the West Virginia election case. The reason that case in one way was easy to focus with the reason the issue could easily be focused was. That it was a matter of public record where the three million dollars came from. It came from I forget the president of the Chaman I think you said of the company which was appealing the very large rooting against it. What does a litigant do now in a state with elective judges. When. In effect as a matter of federal law the limits are often what corporations can do. And in fact there are avenues for contribution which do not disclose the ultimate source of the money. It seems to me I know what I would do if I were a litigant in that kind of a situation.

I would I would require. I would I would demand in the name of due process a disclosure of all sources of contributions to the judges on that court before which I was going to appear and an analysis of the sources if in fact the name. Was opaque. And I think it's inevitable that this is going to come and I don't know really of anything that litigants can do. In the name of due process. Sure unless they are willing to take the chance of sort of just being a fish getting shot out in a barrel when they don't know who is firing. I think this is got to come. You know where this is leading I I think given. The current Supreme Court majority's view of the First Amendment is a clash between. The First Amendment and due process. Which I mean you're right. But you know.

This oversimplifies a little bit but not an awful lot. Most of the constitutional issues that come before the Supreme Court of the United States. Are not. Questions of. Should we apply this principle as it logically ought to be applied. But rather questions of. Should we apply this principle. That might apply or that principle that might apply. The the essence of principled decision making by a court like the Supreme Court of the United States. Is in the reasoning that selects the principle that is going to predominate in a given case. Of principled decision making isn't simply being logical. It is being reasonable in selecting from among legitimately competing principles. And we're as you sail in that we're we're we're going to

see that as between the current view of First Amendment rights and and enduring view of due process rights. So it's a question of whether the current majority is willing to follow the logic that they've built on the path they've set out right over a cliff. They have to ask them. But I mean the serious Seriously though the past that they have followed in the recent cases. Simply has has not encountered the issue that we're talking about here. Bear in mind that the same Supreme Court that decided Citizens United. Is also the Supreme Court. One personnel change to be different. From the court. Well at this point to personnel change is different. It's the same court that decided the contribution case.

So you go to court which is. Quite clearly and robustly espoused both. The principles this is of the Due Process court anymore than it's a First Amendment court. Justice Kennedy in a majority in both cases. And so so this this is this is a court which has not shown itself shy of confronting either. Due process or First Amendment issues and I have no reason to believe it's going to be shy about. Being candid about how you resolve the tension when that tension gets to them. Just on a personal level I mean it occurs to me. Listening to you. What's it like having been on the court for a good chunk of time. To watch them. Obviously you feel. A mistake was made in Citizens United. What's

that feel like when you feel if only I had been at the conference table maybe I could have. Made a difference. It must be a strange. Feeling to be on the outside looking in after all those years you have to accept the fact that people are going to be serving there for different periods of time you're not going to be there forever. And other people may disagree with some of the things that you have believed. You just can't approach it from the standpoint that. You will never be disappointed or concerned. It's very possible you will. But. This one possibly radical answer to your question Lynn or it comes from the old psychiatrist joke about the young and the old psychiatrist who talking at the end of the day and the young psychiatrist is now his eyes open and he looks exhausted and harried and the older guy looks as fresh as he did at 9 o'clock and the young the young doctor says you know how can you seem so fresh.

How can you stand it. Listening to these patients all day long. Everything is wrong. You're listening to them. Why doesn't it get to you when the old doctor says Oh he says that's the secret. Who listens. I maybe maybe that that may be that may be one answer for the retired Supreme Court justices you know. Who watches that. That's not that is not the solution that either of us. But I think you're feeling a little liberated liberated really liberated too. I'm playing a role in your I guess I had no desire in one way to leave the Supreme Court I loved my colleagues I liked the work that I was doing. There were days when I wish things had turned out differently. But I still love the Corps and just about everybody in that building. But I feel liberated to do things that I couldn't do on the court.

It is it is confining in time as well as indiscretion. And there were other things that I wanted to do while I was still in a condition to do them. So so I'm liberated to do things rather than liberated from things that I dislike. Because I like a better way to put it. Well I know people in the audience. Questions maybe a good time to. Turn to some of your irony. Do we have sent questions. And me. Anyway Donald has a. Set of them. And I'm sure we'll collect more. Let's them to work. OK.

You have some man who's trying to hand you some but OK yeah. OK. Do you think. Any of the decline in enthusiasm for civics. Results from a change in the rhetoric. Of the purpose of government. That is today the focus is much more on privatization enabling the free market. So. I guess that means we don't hear much talk about. Higher purposes of government maybe has that. There's a lack of direction. I don't think that's what I'm hearing out there I think it's the fact that young people anything about it. And so. It's not unexpected that there's not much discussion or concern. You know I would I would say the same thing and again historical perspective helps here this decline started 40 years ago and it wasn't I

hope I'm not going out on a limb here I don't think it was until around. 1990 and into the 90s that people began to say hey wait a minute is something going wrong here. And the unfortunate state of public rhetoric in the United States had not reached anything like today's characteristics at that time. And I've also I alluded a moment ago to the fact that I've seen. A good many civics teachers and in the year and I've I've seen some of the kids that they teach. And I just give you two examples. I I listened to a fourth grade class. From one of the New Hampshire towns that was visiting the state house one day and I happened to be around. And. That that town happened to be blessed with teachers in the fourth grade. Who had themselves enthusiasm for teaching.

And you know the kids were a bunch of winners they knew war they I listen to the governor asking the questions to find out how much they knew. Those kids knew more about civic organization in the fourth grade than I knew in the fourth grade. And you know they were going out of the shoulder sockets trying to answer the questions it was terrific. And I visited a combined couple high school classes in my own town. Again. They were blessed with a couple of teachers who were real sparks. And I mean they they were gung ho. So I don't I don't have any reason to believe that the land of the full state of public rhetoric in the States is going to be itself a roadblock. To educational reform. You know. Here's the question is maybe somewhat related. Is it is the decline in the teaching of civics related to a general decline in

educational standards. Some would argue that in 1935 high school diploma is the equivalent to a 2010 college degree. While I think there is a decline I would share some of that concern. I think that at an earlier. Period in our history a great deal more learned in the early grades than. It is today. And we just kind of diluted it as we've gone along. I'm going to take a pass on that. And. Here's a question Is it reasonable to think that states as divergent as Massachusetts and Texas can be brought to teach a common civics curriculum. Good question. I think that's possible. But. You may have a hard time on certain principles like how should you organize the courts in Massachusetts. You don't

have the popular election of judges in this state. You've got a pretty decent system and there are long term appointments. And in Texas. You know I was born in Marin I've spent time in Texas and if you're a lawyer and you have a trial in a Texas court the first thing you have to do is go do some research on the judge. And try to find out how much money. The judge's been given by to get elected. There are a few records and sometimes you find out some way back that's where you have to do and then you have to meet or exceed it or you're not going to get a. Fair hearing in the judge's courtroom. It's pretty sad. Now why would you want a system like that. And I've been to Texas to talk to the legislature to see if they would be motivated to propose a change a mirror system. Thank you. So it's hardly discouraging it's hard to

think that the winners of the Texas Railroad Commissioner or whoever makes the curriculum there would. Include in the curriculum any criticism of what I practice is there are lots of decent teachers and willing students and everything else and a lot of good things but I don't think their system of judicial selection is ideal. But going just going to the the implication of a civics teaching. I am guessing that one of the things that. I am going to see that we are going to see if the efforts to beef up teaching in our respective States begins to pay off. Is a contrast between the teaching materials of our in the teaching materials that are going to be used and in the future. We had I remember the book in the ninth grade the blue civics book. And it may have been you know it was probably pablum. But it was pablum that got a lot of basic factual material on the page and

we left. I think pretty much with that in our heads. The notion I think. Of a generally acceptable textbook of that sort today on a national level is antique. My guess is we're not going to see such a book. What we are going to see is I think a combination of what is going on in those schools that are teaching civics today and that is an awful lot of that material is getting downloaded. And is then getting exchanged teachers to teachers. There's a decentralization of text going on. And I would be very surprised if that particular decentralization trend is going to change. Here's a question how can we get schools to choose to re include civics in their curricula. When they say they don't even have enough time or money to teach math in literacy well.

And the writer the. Questioner. Works at discovering just as a civic education organization here in Boston. She poses a financial question. You know it's hard but that's why I am in those to bout a program that can be used by kids on their own. That they love to enter having fun and they learn from. Now that's one way to get around it. And. I'm. Excited about that. I think there are two answers to that question. One is one is sort of the fundamental value answer and the other one is the pragmatic how to do it answer. The fundamental value answer is something that. I guess has been lost from the discourse or the consciousness. And. People like us and people who take up this cause in other states it's simply got to keep stating it and they've they've got to keep pushing it. And it's

basically this. In the aftermath of a famous quotation in the aftermath of the. 1787 Convention Benjamin Franklin was asked what kind of a government. The Constitution would give us and his famous answer was It will. Give you a republic if you can keep it. Republics can be lost. Jefferson made the remark that a a a a people both free and ignorant has never been seen and never will be. There has got to be a component of knowledge and understanding if democracy is going to survive. And one two thirds of a nation. Do not know the basic simple structure of their government. When 6 out of 10 people. Adults in the United States cannot answer questions which would once have been appropriate for schoolchildren. Then we are getting to the

point of the Franklin and Jefferson source of worry. If ever we were in a position of worry. It is a greater worry today than than at any other time in our lives. There has been no time in my life for our lives. In which the degree of frustration with government and dissatisfaction with government has been as great and as volatile as it is today. The responses to that frustration. And a frustration by the way which I think probably everyone on this platform also shares. The response is to the the frustration had not been merely political responses throw these bums out and bring in someone new. The responses have included suggestions for structural change. You have heard the suggestions for

constitutional when they go even so far as a modification of the 14th Amendment. When that kind of possibility is being rooted in the public discourse. We have got to be very very worried. About the inability of a majority of the population to understand the structure of what we have. From which follows the location of responsibility within the polity. And against which has to be measured. Any proposal to change. The. The proposals for change is like most moral and political questions. Are not or cannot intelligently be looked at as simply a question. Would it be a good idea to do thus and so. These invariably whether or not they are

recognised as such these invariably are questions. Is this proposal something which would be better than that. Or that which we have. The. The the fundamental nature of these moral and social political questions is. Compared with what. And if you don't know if they if they if the vast majority of the polity do not know what we have now. It is impossible to expect that an informed by definition an informed judgment can be brought to bear on proposals for change. And that is why it is not Chicken Little to say we have got something to be worried about seriously right know about the continuity of constitutional government as we know it in the United States. The pragmatic how to do it. And so the question is. We got those of us who are beating the drum like this and who are on

commissions like the one I'm on in New Hampshire. Have got to be very practical in helping people who would like to do the right thing find the way to do it. I mentioned one sort of litigation of the conflict between the testing scheme and an untested subject and that is. Get the non testing subject worked into the reading curriculum which is a tested subject. I personally think most most educators today think that. In in order to really. To compete with the pressure for testing. If it persists. You're going to have to have some testing in civics we used to have. We used to and we didn't mind. Well yeah but we've got to we've got to make the argument clear this is not funny.

Why we have got something to worry about in the United States of America. And then we've got to be pragmatists and say OK if you want to do what we're pushing for. Get testing back in on the on the state level. Get this. Reading material into No Child Left Behind. Or even. Consider cutting back on some other things that may be as fundamental as the. To the political stability of the United States. So just to make sure I understand the basis of the urgency that you're. Speaking from. It's not that the people who are coming up with these ideas are lacking in civic knowledge is that the population as a whole lacking of it lacking in it is vulnerable to a kind of manipulation. Yeah.

Right that's it. We don't have we don't have a broad basis for critical judgment. In the United States today when two thirds of the population don't know the fundamental structure of the government. Question What do you believe are the three most important pieces of knowledge that American students should possess about our government. You can come up with three between you. You go you go ahead. Oh yeah. You know I'd start with House had organized three branches. What do they do how does that work. How does citizens. Get to know about them and protest. I mean these are the fundamentals that we. Would hope would be a classroom. I agree. No it least the basic structure. Three branches. To. Have an idea here. Of what those three branches do. I've listened to fourth grade classes who can answer

those two kinds of questions. Feely well so it's not an overly ambitious agenda. And I guess the third thing I would hope people would know about government. It. Is illustrated by a story that a friend of mine told me as a lawyer in New Hampshire and a very close friend of mine. And he was visiting some New Hampshire school on Law Day. Once this is back 10 or 15 years ago. And. The subject of the exclusionary rule on criminal cases came up the rule that if the. Evidence is illegally seized seized in violation of constitutional standards it may not be used by the government in its case in chief against a criminal defendant and some kid in the class this was junior high probably high school I guess said. The basic question of why should the public interest suffer by letting some

criminal go free because they Lauren Forsman officer didn't get a warrant. And my friend Bill Golan said that his response to the kid was. Because you are next. And. The if there is any one fundamental principle of good government. It is the principle behind the exclusionary rule and other constitutional limitations. And ultimately. It is the golden rule. Treat others the way you want to be treated with the corollary that if you don't you're not going to be treated that way either. If If If If you had to erase everything in the United States Constitution or the let's say the Rights Constitution as opposed to the structural Constitution. And you could leave one thing. The one thing I believe would be the equal protection clause.

We are in this together and we are all going to be treated the same way. If that were understood. I'd take my chances on substantive outcomes. And. And that is that is the fundamental lesson I think between the hind governments. Of powers that a limited both structurally and for the sake of individual liberty. So that would be that would be my third lesson and I'll put it in the terms of your next. Well thought. No further question. Attack that seriously and so I'm going to thank you both. For being willing to do this. Thank you.