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A Dramatic Call for Improved Civic Education
Americans are in dire need of being re-educated about how their government works because their lack of knowledge not only threatens judicial independence but the republic itself, retiring Supreme Court Justice David Souter believes.
“If a populace has absolutely no conception of the difference between what the executive, the legislators, and the judiciary is doing, then it makes no sense to argue to that populace that, in fact, the judiciary should be treated any differently from those regularly elected branches,” he told a Georgetown University Law Center audience recently.
Speaking at a gathering of the Sandra Day O’Connor Project on the State of the Judiciary, Souter cited surveys showing that most Americans cannot name the three branches of government.
Defending judicial independence “makes absolutely no sense without a realization of the separation of power,” he said. “To say you shouldn’t call for the abolition of judicial independence or for the impeachment of judges when they stick up for individual rights or go against the popular will, that argument makes absolutely no sense at all. Without a conception of separation, without a conception of limitation, judicial independence is meaningless.”
He noted that the O’Connor Project initially focused on “how to stick up for the judiciary” when it was formed three years ago, spurred by a growing frequency of attacks. However, he said, “we learned that the real problem in the United States was not the attacks on judicial independence. That was, in fact, symptomatic. We learned that the real problem was the debasement, and in some places the disappearance, of knowledge of the structure and work of the government.”
The justice called on judges, lawyers, and all citizens to join in the “re-education of a substantial part of the American population”—teaching them “what it means to be an American living under the democratically republican government.” He added that he recently joined an independent curriculum committee in his home state of New Hampshire to devise a new civics curriculum “from kindergarten through grade 12.”
Souter recalled Benjamin Franklin’s famous response after the Constitutional Convention of 1787 when asked what kind of government the country would have. “A republic, if you can keep it,” the founding father said.
“It can be lost, as he knew,” Souter said. “And the lesson we have been learning over the past couple of years is that it is being lost. It is lost when it is not understood. If it is not understood, it will basically leech away.” And with it, the concept of a fair and independent judiciary will be lost, he added.
Souter attributed to the late U.S. Court of Appeals Judge Richard Arnold “the most eloquent, the most perfect statement of the need for an independent judiciary, and an indication of its value that I have ever heard.” He said Arnold simply uttered, “There has to be a safe place.”
“And that is why we have jobs to do—hands-on, concrete ones. That is why we have to go to work (in upgrading the teaching of civics),” Souter said. “Because there has to be a safe place.”