The American Legal System and Civic Engagement

Why We All Should Think Like Lawyers

Kenneth Manaster

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137342331
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In recent years there has been a widely-recognized and serious lack of rational and civil public discussion about current issues. In The American Legal System and Civic Engagement, Manaster asserts that ordinary citizens can form their opinions on public issues more intelligently, confidently, and responsibly if they have some guidance on how to do it. Drawing from the tools and traditions of the American legal system, he offers guidance to aid citizens in understanding public issues and participating in the type of responsible public debate these challenging issues deserve. From analyzing the influence of the media in informing the public, to examining the role of the citizen as a juror, The American Legal System and Civic Engagement is a practical and informative guide to how Americans can better perform the civic duty that modern democracy requires.

1

THE CITIZEN’S TASK

Everybody has an opinion. Each of us has a point of view on at least one issue of public concern. Around election time, and at most other times too, we somehow reach our individual conclusions on topics of the day, big and small. Most of us find frequent opportunities to express those opinions as well. This is obviously just as it should be in a democracy, especially one that so highly values free speech. We share and test our ideas through “the eternal arguing that is the essence of American democracy.”¹

The premise of this book is that the ordinary citizen could form his opinions on public issues—and fulfill his civic responsibility—more intelligently and confidently if he had more guidance on how to do it. More specifically, he could benefit from perspectives on how to evaluate the information and arguments swirling around him, seek out additional information if he thinks he needs it, and reach conclusions about what makes sense and what does not. The individual who is better oriented and equipped in these ways can contribute much more effectively to a rational and civil discussion of these issues. As is widely recognized, in recent years there has been a serious and disheartening paucity of such public discussion. This book, drawing from the tools and traditions of the American legal system, offers guidance to aid the citizen in understanding public issues and participating in the type of responsible public debate these challenging issues deserve.

Our democracy has been aptly described as “an engine for producing a diverse menu of conversation about public affairs, largely carried on in public.”² John Locke, too, spoke of “the variety of opinions and contrariety of interest which happen in all collections of men.”³ Through the noisy, chaotic expression of our opinions, we create the evolving character, values, and concerns of our society. More concretely, we choose the leadership and shape the policy directions of our government. Alexander Hamilton, in The Federalist No. 71, emphasized “that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs.”⁴ This “deliberate sense” is the combined result of the opinions, and ultimately the voices and votes, of individual men and women. A bedrock principle of modern American democracy—“today’s most honored notion of citizenship, the ideal of the ‘informed citizen’”—is that we each have this opportunity to think for ourselves and express our own conclusions on public issues.⁵

This opportunity is sometimes described as a privilege the citizen enjoys. California voters, for example, are officially advised, “It is a wonderful privilege in a democracy to have a choice and the right to voice your opinion.”⁶ At other times, we speak of the citizen as having a duty to make up his mind about public issues and give voice to his conclusions. From this perspective, at a minimum, each of us should express our views through voting. More frequently, the formation and expression of our opinions take place through other means: private conversations with friends, relatives, and coworkers; classroom discussions with fellow students and teachers; participation in political campaigns and community groups; letters to the editor, Internet blogs, emails and other writings; calls to radio and television talk shows; and in many other settings.

Although this individual responsibility is not a legally enforceable duty, its importance has long been emphasized by political leaders and commentators. Justice Louis Brandeis of the Supreme Court believed “that public discussion is a political duty.”⁷ President Truman reportedly said, “The highest office in a democracy is that of a citizen.”⁸ More sharply, Thomas Jefferson observed that “people who expect to be ignorant and free expect what never was and never will be.”⁹

A modern scholar has acknowledged, albeit skeptically, “the widespread conviction that it is the responsibility of a citizen in a democracy to have opinions about everything, or at least everything that pertains to the conduct of this country’s affairs.”¹⁰ Similar doubts about this expectation were well expressed by the central character in a leading British novel:

People may indeed have a certain duty to think about great affairs and form their opinions. But life being what it is, how can ordinary people truly be expected to have “strong opinions” on all manner of things . . . ? There is, after all, a real limit to how much ordinary people can learn and know, and to demand that each and every one of them contribute “strong opinions” to the great debates of the nation cannot, surely, be wise.¹¹

Other commentators over recent decades have described the citizen’s duty more positively, even eloquently:

Universal suffrage, by giving all a share in the control of the government, makes it mandatory for every man to become a statesman.”¹²

Democracy offers more but also requires more from the individual than any other form of society . . . In a democracy . . . it is [the individual’s] personal responsibility and that of educational institutions to prepare him for participation in community affairs . . . The individual must be independent and informed and conscious of the choices before him. He must develop the capacity to weigh values and know the implications and consequences of his decisions.¹³

There is a fundamental difference between shouldering the rights and responsibilities that come with citizenship—engagement, participation, debate—and merely inhabiting the land.¹⁴

Democracy is only effective to the extent that the public are well informed about issues and can think independently and critically about those issues.¹⁵

The claim of democracy is that every man decides for himself. The use of one’s natural faculties to determine for oneself what is true and false and good and bad is the American philosophic method.¹⁶

However this responsibility may be phrased, meeting it is not easy for anyone. It is difficult to understand the ever-changing issues confronting us in twenty-first-century America, and perhaps it always has been. Public issues are usually complicated, and we are often barraged with arguments and asserted “facts” thrust before us by those who want to persuade us to share their views. Again, this is as it should be. In a society that cherishes freedom of speech, we should welcome the incessant contest of information and argument, even though it often seems confusing and overwhelming.

Unfortunately, when we try to discern how to meet our individual civic responsibility, we find very little guidance available to us, either as children in the educational system or as adults in the working, and voting, worlds. “In the schools, the young have been exposed to an education which has been far more effective in preparing for academic learning and vocation than for an understanding of the processes and problems of democratic society.”¹⁷ This obviously is a serious failing, especially in light of the importance of education in a democracy. The critical role of American education was emphasized by Justice Thurgood Marshall:

Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes. Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation.¹⁸

There is no substitute for the kind of education Justice Marshall describes. There is, however, an additional area of our public life in which guidance can be found for enhancing individual capability to meet our civic duty. This guidance comes from the American legal system, which prides itself on using structured processes for reaching decisions based on solid evidence and purposeful policy. Every day judges and jurors rely on these processes to help guide them toward decisions in complex disputes. Lawyers perform a central role in these processes, as they marshal evidence and arguments both to highlight the facts and reasoning behind the positions they want judges and juries to accept, and also to challenge opposing positions.

This book will explain the core tools and traditions of the law that are used by lawyers, judges, and jurors. As should be obvious, these three categories of participants in the legal system do not all use the law’s methods in exactly the same ways or for the same purposes. Nonetheless, the tools and traditions explained here characterize in a variety of ways the work people do in all three of these roles. These methods of the law are, in other words, the foundation and common denominator of the work of lawyers, judges, and jurors. This book’s guidance for the citizen builds on this foundation.

Occasionally, we speak of “the court of public opinion” to describe the ongoing discussion of controversial issues. Certainly, any comparison would be imperfect between a court of law, with its established procedures and decorum, and the diverse, everyday arenas in which people try to inform and persuade each other about public issues. Nevertheless, the law’s well-established methods for reaching decisions can be drawn from to help citizens reach their decisions on public issues.

When we speak of “public issues,” the governance and welfare of our society are our most prominent concerns, and they will be the most frequent reference point here. They are the issues found in “each day’s serious reported news, the iron core of information that is at the center of a functioning democracy,” as distinguished from merely “pleasant and diverting stories.”¹⁹ Our purpose here, however, is not to evaluate the relative importance of some kinds of issues as compared to others. Lots of people focus frequently on matters that virtually everyone knows do not raise any broad, serious concerns. Public debates—at times, really, just widespread gossip or tabloid publicity—regularly dissect, for example, the steps and missteps of established or newly minted celebrities. These topics, too, probably can be included within the broad scope of public issues in this exploration of guidance on how to understand and evaluate them.²⁰

This book rests on four important assumptions. First, it assumes that the individual citizen is likely to be interested at some times in some issues. It conversely assumes that he or she is not, nor even should be, interested at all times in all issues. In a society as complex and contentious as ours, with so many people so busy with so many obligations and pastimes, it would be unrealistic in the extreme to assume otherwise.

Second, it is assumed here that the function of public opinion is not for voters, individually or collectively, to constantly convey to their representatives exactly what positions those officials should adopt on specific issues. Certainly citizens often should and do express their preferences on issues to both their elected leaders and other government officials. In doing so, they are pursuing what political scientists view as a “delegate” model of democracy, in which citizens’ expressed preferences guide the actions of the government. To a considerable degree, however, a “trustee” model characterizes our society. In that view, officials are charged to exercise their own best judgment on behalf of the citizenry, even if messages from the voters are absent, ambiguous, or contrary.²¹ Regardless of which model or combination of models best describes American democracy,²² the need remains for informed, thoug...

Table of contents

• Cover
• Title
• 1  The Citizen’s Task
• 2  The Citizen’s Obstacles
• 3  Conventional Guidance
• 4  The Law’s Tools and Traditions
• 5  The Citizen as Juror
• 6  Inescapable Differences
• 7  Guidance from the Law
• 8  Conclusion: About Responsibility
• Appendix: Reviewing the Guidance
• Notes
• Index