Constitutional Literacy in Times of Crisis

Maartje De Visser

SMU School of Law, Singapore

At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O’Connor made a passionate plea for “all citizens to understand our Constitution and unique system of government, and participate actively in their communities.” The timing coincided with the halfway mark of Donald Trump’s term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question. At its foundation, the democratic legitimacy of a government arguably presupposes that all members of society possess a working familiarity with their country’s basic founding document. How can a constitutional system claim to be based on popular sovereignty if its populace is ignorant of the source and scope of its government’s powers and responsibilities? Moreover, familiarity with the scope of State powers and inter-institutional balance allows us individuals to perform our collective role as constitutional guardians and to do so responsibly, be it at the ballot box, by challenging unlawful State actions or by effectively using freedom of information laws.

Literacy and identity

The normative case for constitutional literacy is already compelling during normal times. The need is amplified during times of crisis, when people are exposed to measures that would in other circumstances have been decried as far beyond the constitutional pale – as we are witnessing with the Covid-19 pandemic. Many countries have restricted our individual ability to move freely within and across national boundaries, and also to associate in groups. These are the sort of restrictions which are usually imposed pursuant to penal or security regulations. In the name of public health, countries have authorized deep intrusions into our private lives by meticulous tracking our every whereabouts. Significant delegations of power have been effected to enable the government to respond swiftly, and massive financial redistribution exercises have taken place. Taken together, the scope and scale of Covid-19-related measures implicate the core substantive rules found in constitutions: those regulating the system of government, including inter-institutional balances, and the rights provisions. While many systems have not given the government a carte blanche in tackling the pandemic, decisions are made under conditions of high uncertainty and significant time pressure, potentially giving rise to ‘shoot first, ask questions later’ policy choices. Restrictions on MPs’ ability to meet due to social distancing requirements have led to the suspension of major oversight mechanisms in several countries. To the extent that changes to the relationship among State institutions or with the citizenry are effected through ordinary legislation, these may outlast the pandemic because they may escape the temporal validity constraints that are commonplace in the design of emergency regimes. Widespread awareness of the constitution is an important factor in ensuring that potentially far-reaching changes do not go unnoticed or endure in the absence of informed support across the citizenry.  

But beyond changes to the legal framework, a crisis like Covid-19 also implicates the nation as an imagined cultural-political community, viz. the collective understanding of what unites us into one in-group. This points to the need for people to be literate about the shared aspirations and values that animate a constitutional way of life. For example, South Korea’s response to the pandemic has been described as a blend of its Confucian cultural roots that emphasize collectivism and cooperation with a keen democratic-liberal philosophy of encroaching upon personal freedoms only to the extent absolutely necessary. China’s approach is said to exemplify its “exceptionally high degree of population understanding and acceptance” of placing the community above oneself, while the stockpiling in the US has been ascribed to a tradition of reliance on markets to keep Americans safe and prosperous. Covid-19 has brought to the fore questions about social-ethnic divides and inequalities, while border closures have fueled thinking along national lines. This crisis compels reflection on the markers of our national identity, including the political-philosophical principles reflected in the constitution.

Using heritage for literacy purposes

The identity of a national community is partially founded on the legacies of the generations before us, our political-cultural heritage. This heritage manifests itself, amongst others, in buildings, structures and artefacts. Think of the Statue of Liberty in the US, Robben Island in South Africa, the Red Square in Russia, the Hiroshima Peace Memorial in Japan as well as temples, cathedrals and national museums that recount a country’s grand narrative.

This tangible cultural-political heritage can be a powerful medium to enrich constitutional literacy efforts – notably, an understanding of the shared aspirations and values that constitute the constitutional way of life. This is done by allowing people to immerse themselves in an environment that has shaped their country’s direction and identity. Think of heritage sites where large numbers of citizens normally gather every year to celebrate national holidays or commemorate together. Lockdowns have however shuttered most heritage sites, and with it their ability to act as a social glue that binds (diverse) communities together. Those that have remained open – like Angkor Wat in Cambodia – attract only a smattering of visitors, as fear of infection and limited transport options keep citizens away. 

Technology may alleviate the closure of physical sites through virtual tours, but is no panacea. An online video of the Statue of Liberty or Robben Island is a poor proxy for the real-life experience. Virtual access further brings to the fore the digital divide, as not everyone can access remotely the structures or artefacts that evoke their relationship with the nation. Finally, the question of resources also looms large: in Asia, for instance, the majority of heritage sites must generate their own revenue, while those that do receive financial support from the government face the almost certain prospect of cuts as national economies are taking a severe beating. The long-term negative impact of a crisis-induced funding crunch can be substantial. The preservation of existing heritage sites may be compromised, and thereby their ability to serve as a common reference point for future generations of citizens as they continue to (re)make the nation. Plans for upgrading or expanding the range of places to mark occasions, individuals or values of deep significance for the nation stand to be shelved – perhaps permanently, as conventional crisis responses prioritize the economy over cultural heritage, even though the latter can do a great deal more in fostering national allegiance, let alone constitutional patriotism.

Fewer than one-third of the constitutions currently in force demand that the State protects its cultural-historical heritage. Only a small number also recognize that individuals have a right to enjoy such heritage as well as share in the responsibility for its safekeeping. Clauses along these lines tend to be found in recent constitutions adopted in the wake of socio-political transitions (e.g. Egypt, Timor-Leste) and in those of states that subscribe to a ‘thick’ conception of what qualifies as a ‘good society’ and, by implication, ‘good’ citizenship (e.g. China, Bhutan). It would be good to see the mainstreaming of heritage-preserving provisions, however, as caring for the tangible manifestations of the (moral) foundations of our political system should not be a choice left to the whims and fancies of the government of the day, but a basic constitutional obligation.

Conclusion

As societies are strongly buffeted by winds of change, the need to understand the basics and values of the constitution is ever more real. From the US to France to South Africa to Malaysia, calls for civics classes and improved access to constitutional materials have become louder, and rightly so. It is important to move beyond the structured, top-down dissemination of information that is characteristic of much civic education. Heritage sites can be a valuable addition to the literacy toolbox, especially in (re)animating a collective consciousness towards a nation’s sense of self. In this context, the effects of Covid-19 on the future ability of heritage sites to discharge such a function bear careful consideration.

Maartje De Visser is an Associate Professor at SMU School of Law, Singapore.

Suggested citation: Maartje De Visser, “Constitutional Literacy in Times of Crisis” IACL-AIDC Blog (23 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/23/constitutional-literacy-in-times-of-crisis