Vol. 9 No. 7 (July 1999) pp. 309-314.

REPRESENTING POPULAR SOVEREIGNTY: THE CONSTITUTION IN AMERICAN POLITICAL CULTURE by Daniel Lessard Levin. Albany: State University of New York Press, 1999. 283 pp.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College.

This book employs an analysis of the successes and failures of the federal Commission on the Bicentennial of the Constitution to make important statements about the place of the Constitution and constitutionalism within American political and popular culture. The objectives of the book are many. The author writes, "This study combines political theory with empirical research in an attempt to revive 'sociological constitutionalism' and to better understand the life of the Constitution outside the courts and political institutions (page 6)," and "The central question which animates this work continues to be whether it makes sense for Americans to link their contemporary national and political identity with a two-hundred-year old document (page 12).

A listing of chapter titles, in order, provides an indication of the wide scope of the book and of the author’s intellect: "Introduction: Constitution as Culture;" "The Problem of an Abstract Constitution;" "The Conscious Creation of Constitutional Culture;" "The Constitution in Public History;" "The Constitution as a Written Document;" "The Constitution as a Symbol of Democracy;" "The Constitution in Educational Policy;" and "Conclusion: Representing Popular Sovereignty."

At one level the book is about the federal Commission on the Bicentennial of the Constitution, headed by Chief Justice Warren Burger. In Chapter 2, and throughout the book, we learn about the following workings of the Commission:

Levin documents a history of failure by the Bicentennial Commission. He argues that it failed to allow the Constitution to become a symbol of national or individual critical reflection of our nation’s constitutional values and practices. There was a lack of clarity, really an incoherence at times, and an oversimplification at other times, of what the Constitution and constitutionalism, means in the context of the United States. Levin argues that the incoherence of theme led to what he calls a "fetishization" of the Constitution, with little sense of what was distinctly American or constitutional because of the "symbolic overload" (p. 38).

We also learn that the Bicentennial Commission failed organizationally in the following ways:

It was successful, however, in making sure that the Bicentennial logo only went on items of good taste, even though they did not sell up to expectations.

Analyses of the major public meetings, television programs, and national contests organized by the Bicentennial Commission are used to make larger points about American political culture, constitutionalism, the ambiguity of the Constitution as symbol, and mass versus elite roles in the definition of "the Constitution" and constitutionalism as part of our popular and political culture. There is a detailed discussion of how the term "we the people" was used and misused in Bicentennial programs, as well as an analysis of its central motto,"The Constitution: The Words by Which We Live."

The most interesting chapter of this book, "The Constitution in Educational Policy," collates and brings clarity to the complex arguments presented in prior chapters. This chapter is a critique of the educational theory behind the Bicentennial Commission through an analysis of its celebrations, contests, and programs of education.

This critique has important implications for how educational institutions, public events, media, and we as scholars teach about "the Constitution" and American constitutionalism. Levin notes that Chief Justice Burger called on the Constitution’s Bicentennial to serve as "a history and civics lesson for all of us" (p. 159). However, Levin views as "fruitless" the efforts by the Commission to teach Constitution as text, adulation of the founders and the document, and as direct moral education.

However, Levin’s book is not simply a documenting of this failed attempt, but also it is an analysis of the elements of American political thought and politics which made it difficult for the Bicentennial Commission to provide a coherent theme. The most significant is Levin’s argument about the confusion in our political culture of what constitutes popular sovereignty.

Most important, Levin questions whether citizens must understand the complexities of the Constitution to be good citizens and asks why the Bicentennial Commission, and elites generally, seek to directly inculcate the Constitution as text. Levin writes,

Levin also writes, "As an event, the Bicentennial was a fascinating glimpse of mass society attempting to reach back into it civic republican past" (p. 3).

These quotations are at the core of what this book is about. First, Levin makes a valid argument that the concept of popular sovereignty in our nation’s constitutional scheme is very complex and difficult to explain, as is our faith in governmental mechanisms to protect the people and nation, especially compared to the English constitution. Levin also cogently critiques the Bicentennial Commission, and elites generally, for assuming that you can teach civics today as respect for text, founders, and constitutional principles, rather than through a critical look at the Constitution as text and principles in light of the nation’s problems and historical race, ethnic, and other minority group conflicts.

Levin also criticizes elites who call for more civic education and encouragement of citizen participation in light of the continuing rhetoric of an educational crisis in our public schools. He argues that such calls depend on what he views as a myth of a "golden age" of energetic civic participation when citizens shared governance and the nation’s history (p. 161). He uses survey data from the 1940's to show that previous generations also did not understand the principles of the Constitution and major governmental leaders in our history. Levin criticizes Chief Justice Warren Burger, Bicentennial Chairman, for basing the Bicentennial Commission programming on the premise that it must educate citizens on the substance of the Constitution and for overstating the ignorance of the American people when appearing before Congressional committees on Bicentennial matters.

Levin also criticizes those who equate student ignorance of the political system with a lack of concern about politics and an unwillingness to abide by the law, noting that "Many individuals drive cars without the slightest understanding of the internal combustion engine" (p. 163). Levin opposes the fact that "public education has become the scapegoat for many of society’s ills, while also being viewed as a cure for far more" (p. 163).

Levin also criticizes proponents of the Bicentennial Commission’s view of civic education for assuming that government and economic institutions are largely successful, while public schools have failed because they leave students apathetic or ignorant about our nation’s Constitution, government and its institutions. (p. 163). He argues that to call for the need for more student and wider citizenry knowledge of the Constitution, in the way the Bicentennial Commissions did, gained tax dollars for the Bicentennial celebration, but failed to challenge the existing political and economic arrangements, which the author views as central to an education of the Constitution as a living form.

Levin also does not like the ease by which individuals, rather than our nation’s social, economic, and political structures, are assigned the blame for our nation’s problems by the Bicentennial Commission’s theory of educating on the Constitution (p. 164). Levin feels the political system, not individuals, need remaking. He criticizes the Bicentennial’s galas, map-drawing contests, and television programs as simply emphasizing in glorious terms the Constitution and its founders. As civic education, Levin views such efforts as inadequate, mystifying, worn, and ineffective if the goal is to make students, and all citizens, more knowledgeable about the place of the Constitution, its principles, and constitutionalism as part of social change. These themes are at the core of Levin’s substantive concerns. Levin’s message is that direct moral education, really socialization, of our nation’s citizens into the view that the Constitution as text and the founders as individuals were to be admired as good and unique, is an ineffective way to make citizens aware of the place of the Constitution in our nation’s history, life, and political culture.

Levin argues for teaching social history, student learning by participation, and, most important, the teaching of critical skills. He writes, "For students to appreciate constitutionalism as both theory and practice, they must internalize the practice of politics" (p. 182). The author opposes programs aimed at producing a civicly competent populace because they are not respectful of citizens’ capacity to govern themselves. Moreover, the study of constitutional text, rather than of continuing debates about constitutional values, may meet the needs of elites, but is a poor substitute for learning about citizenship through participation in government and in the many institutions that mediate between citizen and government (p. 183).

One might raise some questions about several of Levin’s assumptions about constitutional practice and the place of courts, law, constitutional theory, and the interpretive community, in the process of constitutional change in the American context. There is also a lack of clarity of the role of "cultural institutions," the interpretive community and other elites, the mass public, and important legal rules such as that precedent be honored, if not always followed, or the requirement that justices not simply place their personal policy wants into law, but view their choices in terms of the need for institutional legitimacy.

At one level we see that Levin understands such limits on constitutional change. He writes,

Having hinted that the rule of law and precedent play an important role in constitutional change, Levin then states his views about the difference between constitutionalism at the mass political culture level and at the level of the interpretive community. He writes,

The author situates himself as a scholar who does not wish to learn about American constitutionalism from the perspective of Supreme Court justices, other jurists, legal scholars, constitutional and political theorists, informed journalists and citizens, and legislative and executive bodies. Rather he is interested in how citizens come in contact with constitutionalism as part of our political culture. That is, while Levin has masterfully demonstrated the failure of the Bicentennial Commission to help advance the debate on the constitution and constitutionalism as political culture and on how to represent community within a mass society, he has not helped us understand the relationship between the constitutionalism of the interpretive community and of mass society. There is no discussion of the effect of the Bicentennial Commission’s portrayal of the Constitution on how its audience might view constitutional law, and individual rights.

Levin seems to leave unexplained the relationship of mass society, community(ies), elected bodies, and the interpretive community on the development of constitutional principles and law. He hints throughout the book that there is a wide separation between the citizenry and interpretive community, but is not clear as to the proper role for each. At times he castigates the interpretive community as elitist; at other times he emphasizes that there is no need for citizens to know the Constitution because its complexities are too great and specific changes and interpretations are not made by the populace. Levin writes.

While the Constitution left to mass politics rather than to the elite of knowledgeable interpreters, may be a more approachable and democratic document, there are important scholarly issues about whether it is best to leave the interpretation of the Constitution to the interpretive community, or the populace. Scholars differ over in whose hands is best left the protection of individual rights, especially of subordinated groups. Since Levin does not trust the people to be knowledgeable about the Constitution because of its complexities, such as its concept of popular sovereignty, or the interpretive community because it is elitist, it is not clear to whom to entrust protection of the rights of minorities.

While this book thoroughly accounts for why the Bicentennial Commission’s theory of educating the population was faulty, resulting in a failure of its mission, there is no discussion about the relationship between the role of education in making citizens knowledgeable about constitutional principles and the concern for the protection of their rights and those of the less fortunate.

Having indicated his objection to the interpretive community as elitist, through assertion rather than evidence, and having argued that citizens do not need specific knowledge of the Constitution, how does Levin propose that our nation ensure that future generations continue to be knowledgeable about individual rights and the limits on public power in the Constitution and seek their continuation? The reader gets double messages. He is told to trust neither the interpretive community because it is elitist, nor the citizens because the Constitution is too complex; community is not possible in mass society; and the possibility of a direct and unmediated relationship between citizen and text as constitution is still remote (p. 124). Only with an affirmative statement of a proper process of constitutional change, rather than simply a critique, can we have a proactive proposal for public education on the Constitution.

Levin does support education that enhances critical thinking by students and the larger citizenry; however, he opposes moral education which proselytizes in support of Constitution as text. The book stimulates the reader to think about the relationship between teaching critical thinking and moral education. How does the teaching of critical thinking affect the substantive values of those who study the Constitution? Can critical thinking skills be developed no matter what the interpretive approach of the teacher: originalist, non-originalist, critical legal studies? What is the relationship of education process to the inculcation of substantive values and the respect for rights?

Levin emphasizes the Constitution as a legal mechanism through which Americans have transferred their sovereign powers to representative government, which thereby makes public knowledge of the Constitution less important than public knowledge of the political system. This may underestimate the role that education plays in developing citizens to fill the roles in the interpretive community and interest group structure which use rights talk to ensure that constitutional values are protected. How do future members of the elite become interested in a life of rights protection, either as citizens or as legal advocates?

In conclusion, the book is superb in raising these important issues about the limits of using a public political culture to educate citizens on the Constitution in general, and the efforts of the Bicentennial Commission, in particular, to do so. This is must reading for legal scholars and political theorists who are interested in the use of public forums for the teaching of the Constitution and constitutionalism as part of our political culture, with particular regard to the aspects of American political thought that makes such teaching so difficult. Moreover, this book forces us to think more precisely about the important relationship between public education on the Constitution, the interpretive community and the process of constitutional change.

Copyright 1995