Comment: Election showed what we don’t know about Constitution

Cynthia Levinson and Sanford V. Levinson / Special to The Washington Post

Thanks to the 2020 election, you do not need to have sat through high school civics to know that Americans don’t actually vote for their president. Or that the members of the electoral college who do vote may not be required, depending on their state’s laws, to cast their ballots for the person they’ve been directed to support. Or that state legislatures might appoint alternative electors and, if Congress goes along, overthrow the popular vote weeks after it was certified.

President Trump’s desperate maneuvers to overturn his loss by taking advantage of these mechanisms have converted law-school hypotheticals into dinner-table arguments and viral tweets. Meanwhile, the gobsmacked public wonders: “Can he do really that?!”

Many other routinely ignored details in our Constitution related to the presidency are also current events, including the hiatus between the election and Inauguration Day, the pardon power, emergency powers and the possibility that the House of Representatives could elect the president on a one-vote-per-state basis. For many people — including those who thought they knew how our electoral process worked — key details of the president’s machinations likely came as a surprise. Indeed, one unexpected side effect of the post-election chaos may be that it has provided a sort of second civics curriculum for those who left the classroom behind long before, pointing out things we should have known all along. The election and its long wake have, in short, at once demonstrated how little many of us knew about the mechanics of our government and suggested new ways to educate future generations of students.

Research shows that Americans have a woeful level of knowledge about and understanding of the Constitution. Over the past 50 years, as the number and range of both optional and required civics courses have dropped precipitously, far fewer students have had the opportunity to study the innards of our founding document. Even those who do largely learn just the basics in a rote way, barely enough to pass a multiple-choice quiz. Typically, the only part of the Constitution that students get excited about is the Bill of Rights, since they can argue about gun ownership and whether kneeling counts as free speech. Readers of our books, “Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today,” tell us they’re stunned at the differences among states in who is eligible to vote, how, when and where. You mean there’s no national system for voting procedures? they’re asking.

We contend that the structural aspects of the Constitution are at least as debate-worthy as — and more in need of revision than — most of the rights provisions.

Take its most foundational arrangement: our three-part government (which barely half of American adults can identify, as The Washington Post reported Sept. 17) and bicameral legislature. While the Constitution’s framers intended the executive, legislative and judicial branches to balance and check one another, the presidency has become increasingly dominant since the Second World War. Between vetoing bills and issuing executive orders, based on what Justice Cardozo back in the 1930s described as Congressional “delegation run riot,” presidents can undo legislation and basically invent their own laws. Since presidents can no longer be viewed as merely enforcing laws created by Congress, we have in effect a tricameral legislature. In our polarized environment, pushing the envelope of executive power is especially prevalent when a president faces a Congress even one house of which is controlled by the opposing party. And, since the framers didn’t plan for political parties, this presidential overreach is perfectly constitutional.

Although most informed Americans might be aware that each of the 50 states has the same two votes in the Senate regardless of population size, there is rarely discussion of the degree to which that contributes to our dysfunctional state of affairs. High federal subsidies to corn farmers is only one example. The arrangement was inscribed in the Constitution only as a last-ditch compromise to create a union. In “The Federalist” No. 62, Madison described it as a “lesser evil” to having no Constitution at all; but, still, an evil. Today, he might describe it as a peculiar “affirmative action program” that works mainly to benefit the residents of small states most of whom are distinctly unrepresentative of the contemporary American mosaic.

Similarly, most Americans probably know that Trump has the power to veto bills, including the recent covid-19 economic relief bill, which he threatened to do, and the Defense Appropriations Bill, which he did. Some may have recalled from a long-ago social studies textbook that Congress could vote to override his veto with two-thirds majorities in both the House and Senate. Yet, it’s likely hardly anyone realized that, because the relief bill reached the president within 10 days before Congress adjourned, he could have engaged in a “pocket veto” that would be final, with no possibility for an override. A new Congress would have to start all over to negotiate a bill that incoming President Biden would sign, leaving workers and businesses in the lurch for months. That, too, would have been perfectly constitutional. Any president can pull it off.

If we hope to improve our system of government, we’ll need to begin by expanding young people’s awareness of the repercussions of the Constitution’s fault lines. Enriched and expanded civics education alone might not save democracy, but it is a necessary start.

First, educators should relate stories, not just articles and clauses. Constitutional artifacts have real-life consequences. It is because of our intricate requirements for passing laws that the federal government periodically faces shutdowns for lack of operating funds (meaning no welfare checks, for instance) and that the young undocumented immigrants known as Dreamers remain in limbo. We wake up fearing that, as commander in chief, a president might unilaterally go to war without consulting Congress. Because of roadblocks built into Article Five, which dictates the process for amending the Constitution, serious discussions of constitutional reform rarely take place.

Second, educators can bring those stories to life through simulations, research-based case studies and theatrical scripts written by students or teachers. Along the way, they can provide students with the opportunity to speak on behalf of those affected by the ramifications of our governmental system, especially those the framers left out. They can also develop hypothetical scenarios that could arise from bits of the Constitution students might not know about or dismiss as unimportant. And, through writing and delivering dialogues, they can encourage them to debate the issues.

Many more ideas for engaging students in making the Constitution come to life are available through the National Constitution Center or even an amendment game created by the National Archives; we also offer suggestions on our website. In the last decade, several states, such as Florida, Illinois, and Massachusetts, have increased civic-learning opportunities for students.

In taking such an approach, we should allow students to investigate alternatives, encouraging them to push back on the widely held but debatable conceit that our Constitution is the best in the world. Supreme Court Justice Ruth Bader Ginsburg acknowledged this fallacy when she advised Egyptians in the early days of the Arab Spring not to use it as a model when revising their own. Not only do the constitutions of some other countries avoid our impediments — none has an electoral college, for example — but so do many states. For instance, half-a-dozen states allow their legislatures to reject a governor’s veto by majority vote rather than the supermajority required of Congress. Recognizing that there are other ways of doing things, some of them far more effective than ours, need not be construed as unpatriotic. And making that clear should, in turn, prevent budding citizens from blindly accepting the more dysfunctional elements of our system.

The resurgence of youth activism, unprecedented voting rates this year, and, for better or worse, viral social media posts reveal a galvanized awareness of the importance of Democratic processes. Let’s take advantage of it to educate our youth about the bugs in our Constitution. That way, they won’t be surprised next time something goes awry; and, even better, could prevent it. In addition, let’s move beyond schools and foster community-wide discussions of the frailties of our Constitution and ways to address them.

Cynthia Levinson writes award-winning nonfiction for young readers of all ages. Sanford V. Levinson is a professor of law and government, at the University of Texas at Austin.