Sanford Levinson, What Should Citizens (As Participants in a Republican Form of Government) Know About the Constitution?, 50 Wm. & Mary L. Rev. 1239 (2008-2009).

My own interpretation of “citizen lawyer,” however, takes a somewhat different form. Rather than talk about lawyers as good citizens, I want to address instead what knowledge of the legal—and, more particularly, the constitutional—systems we should legitimately expect (and encourage) from our nonlawyer compatriots in the American political community. In part, this reflects a long-term interest of mine in, and in defense of, the capacity of nonlawyer citizens to express themselves cogently on constitutional issues. To use the terminology that I develop in my book Constitutional Faith, I am very much attracted by a “protestant” view of the American constitutional order that rejects the declaration of authority by any given institution—including the Supreme Court–to possess the “last word” on what the Constitution means. My conception of the “Republican Form of Government” that lies at the heart of the Constitution’s self-conception requires an active citizenry that is constantly engaged in internal debate over not only the meaning of the Constitution with regard to those clauses that are indeed ambiguous, but also with regard to the adequacy of those parts of the Constitution that are all too clear in their meaning.

My central point is that students in civics courses should spend at least as much time learning, and arguing about, the questions posed by the hard-wired structures of American government as they do about censorship of student speech, abortion, or affirmative action. It is not that these latter topics are not fun to talk about, at least to people who like to argue, but what students must realize is that the Constitution is fatally indeterminate with regard to all of these latter issues. The actual decisions of courts will inevitably reflect the basic predispositions of the judges themselves, who are capable of finding legitimate constitutional arguments for both A and not-A. The hard-wired Constitution is different. Justice Robert Jackson may have legitimately proclaimed the Bill of Rights to be “majestic generalities,” but no rational person would apply this term to the clause that allocates voting power in the Senate or sets out the specific length of a president’s term of office. Changing those aspects of the Constitution would require far more than electing presidents who will nominate judges whose approach to constitutional interpretation are favorable to flexibility and change. It would ultimately require constitutional amendment, and that in turn requires something we most definitely do not have at present, which is a citizenry (or leaders) that is willing to ask tough questions about the adequacy of the Constitution.

As one hopes is obvious, I do not believe that one needs to be a lawyer to ask (or answer) such questions. But inasmuch as lawyers, for better and worse, play perhaps disproportionate roles as civic leaders, including their participation in such civic rituals as giving speeches on “Constitution Day,” it is essential that those institutions devoted to training American lawyers stop identifying the Constitution with only those very small, frequently litigated parts and instead take far more seriously the task of creating “citizen lawyers” fit to play their roles in civic life.

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