This essay by Ronald J. Krotoszynski Jr. makes the relatively uncontroversial point that the laws recently passed in Idaho and Oklahoma banning the teaching of critical race theory in public colleges and universities are unconstitutional. Both a veritable mountain of Supreme Court precedent along with constitutional common sense suggest that this would be the case. A serious commitment to public education is simply incompatible with legislation that directs what can and cannot be taught. Although Krotoszynski cites a long history of Supreme Court precedent suggesting that’s the case, I think most of us would know this simply by consulting our own constitutional common sense. In fact, I think the Idaho and Oklahoma legislators know this.
So why pass the legislation? I would suggest that this is symptomatic of a new kind of legislation and understanding of politics, more generally. As Charles Zug argued in his recent Constitutionalist essay, it’s possible to imagine a Trumpian Third Party precisely because Trumpians like Marjorie Taylor Greene don’t seem actually to care about governance. They are more interested instead in provocation and a rhetorical agenda that lands them frequently on Fox News and other right-wing news outlets.
Although, at the national level, this kind of provocation might lead to attempts by Greene and her allies to introduce symbolic legislation, they do not have the power actually to pass it. By contrast, overwhelmingly Republican legislatures like Idaho and Oklahoma do have that power. I would suggest, however, that they pass this legislation as a rhetorical device rather than as a real attempt to change policy. Most of them do not actually believe they can do this, nor, I suspect, would they even want to. Instead, they have erected what is seemingly a significant symbol of their opposition to critical race theory. Their legislation puts them on Fox News but they have no real intention of changing policy.
Although our constitutional republic has for the most part been able to avoid this, it is one of the essential democratic problems. Democracies have always been systematically irresponsible in the way they exercise their governing authority. They govern with a view to the applause of the people rather than to effect substantive policy change; because the people can’t often tell the difference between these two things, democratic legislators who do it don’t get punished for their irresponsibility. Understanding precisely this about democracy, the founders created a compound republic that would rationalize democratic power. But, if this irresponsible use of legislative power persists, it may be hard to pull us away from the abyss of democratic irresponsibility.