A Popular Approach to Popular Constitutionalism: The First Amendment, Civic Education, and Constitutional Change

Abstract

Popular constitutionalists often ignore one of the most important features of popular constitutional culture - the constitutional life of the average citizen. Although these scholars have detailed the key role played by non-judicial actors in promoting non-Article V constitutional change, they have spent little time considering how changes to constitutional meaning become part of our popular constitutional fabric. This Article fills a gap in the literature by examining how popular constitutional meaning is shaped “on the ground,” once the most recent controversy fades and constitutional life returns to normal. To that end, it focuses on a pathway that has been largely ignored by legal scholars - civic education. In particular, this Article scrutinizes the free speech stories presented in our leading high school textbooks. In the end, these popular constitutional narratives are not particularly popular - and have become even less so in recent decades. Furthermore, the patterns of change in these accounts suggest that transformations in our popular constitutional narratives tend to follow periods where key public officials and broad-based social movements promote similar changes to constitutional meaning.

Keywords: popular constitutionalism, civic education, First Amendment, constitutional law