Constitution Society
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Austin, TX 78757
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textbook@constitution.org

Testimony
of
Jon Roland
President of the Constitution Society
before the
Texas State Board of Education
on textbook evaluation
August 23, 2002

Introduction

Thank you for hearing my testimony today. I represent the Constitution Society. We are focused on constitutional education, and therefore on how civics textbooks being considered for approval handle that subject. This is a report on three textbooks, United States Government, by Richard C. Remy, and The American Republic, by Joyce Appleby, et al., both published by Glencoe/McGraw-Hill; and American Government, by Stephen Kelman, published by Holt,  Reinhart & Winston. These new proposed editions do not have errors as numerous or as serious as those of the proposed edition of  Magruder’s American Government, on which I  reported in my previous testimony July 17, 2002, at http://www.constitution.org/reform/us/tx/textbook/02717_sboe.htm, but my analysis finds several errors and omissions that need to be corrected, some of which resemble those of other textbooks being considered..

This report, with supporting documentation, will be available online on our site at http://www.constitution.org/reform/us/tx/textbook/02823_sboe.htm

Summary of the main errors and omissions

The American Republic, by Joyce Appleby, et al., published by Glencoe/McGraw-Hill

For the sake of full disclosure, the lead author of this textbook, Dr. Joyce Appleby, is a friend and contributor to the Constitution Society, so I made a special effort to find errors, but could find only one. In the Appendix, page 241, some passages of the Constitution are printed in blue (rather than black), it is explained in the caption, to indicate that they have been set aside or modified by amendments. The caption should have included that also blued are passages that have become outdated by the passage of time, specifically Art. I Sec. 9 Cl. 1. But the error here consists of the bluing of the words from Art. III Sec. 2 Cl. 1, “between Citizens of different States”. It is correct to have blued the previous item in the list, “between a State and Citizens of another State” — that was nullified by the Eleventh Amendment, but the federal courts still have jurisdiction over cases between citizens of different states.

United States Government, by Richard C. Remy, published by Glencoe/McGraw-Hill

Page 85 has the passage, “States are free to regulate the use and sale of firearms.” That is misleading. The U.S. Supreme Court has never ruled on whether the Second Amendment is incorporated under the 14th Amendment, although the legislative history of that amendment clearly shows that it was supposed to cover all rights recognized by the U.S. Constitution, especially the right to keep and bear arms. See “Intent of the Fourteenth Amendment was to Protect All Rights”, at http://www.constitution.org/col/intent_14th.htm . It should simply state that the U.S. Supreme Court has not yet ruled on the question.

Page 159 presents a column of “implied powers” in a way that presumes the powers are implied, when the implication is controverted for many of them. It would be more accurate to label them as “considered to be implied by the majority in government” or other words to that effect, with the mention that there is opposition by some scholars.

Page 443 contains the statement, after saying a jury must be unanimous in a criminal trial, “If a jury is unable to reach a decision, it is called a hung jury and dismissed, and the trial ends in a mistrial.” This is seriously misleading, although it does reflect current practice in the instructions given juries. A close reading of the law and rules of judicial procedure, both federal and state, finds that a unanimous verdict is only required to convict, not to acquit. If a jury cannot reach agreement, it is supposed to return a verdict of not guilty. If pinned down on this point, judges will back down, but they commonly abuse their discretion to pressure juries to convict the accused on some charge, and thereby tamper with the jury and deny due process to the defendant. An omission in this text is sufficient discussion of the role of the jury and the duties of citizens when called for jury duty.

Page 786, Appendix, U.S. Constitution, has Art. IV Sec. 2 Cl. 3 blued, correctly indicating that it was modified by amendment, although there is no caption explaining what bluing means as there was in The American Republic. However, an explanation is needed that the passage was not repealed by the 13th Amendment, which allowed for slavery or involuntary servitude as punishment for a crime, and thus this provision still applies to such persons.

The most serious omission in this text is failure to adequately discuss all of the articles of the Bill of Rights, especially the Second, Ninth, and Tenth Amendments. It has some discussion of the First, Fourth, Fifth, Sixth, and Eighth Amendments, but in a way that does not, except for the First, connect the student to the actual language of each amendment, or explain why the wording was chosen that way.

American Government, by Stephen Kelman, published by Holt,  Reinhart & Winston.

Page 58, refers to the U.S. Constitution as a “living document” in a way that suggests it did not have a definite meaning to the Founders, or need not have the force of a command for us. This is an ideological position, not appropriate for a high school textbook.

Page 68, refers to Art. I Sec. 8 Cl. 18 as the “elastic clause” in a way that misleads the reader into thinking it was intended to be more elastic by the Founders than many people today would like to consider it to be. It needs to be made clear that the Founders would not have approved of current doctrine on its interpretation.

Page 256 discusses judicial review in a way that fails to explain that it is not a power but the exercise of a duty which everyone has, to help enforce the law whenever the situation presents itself, and to resolve conflicts of law, in favor of the Constitution when it is one of the laws in conflict. It is only called judicial review when judges do it.

Page 279 states:

In states requiring a unanimous verdict, the presence of one or more jurors who vote differently from the majority results in a hung jury – a jury that is unable to reach a verdict.

As explained above, in the point on United States Government, page 443, this is not correct. A unanimous verdict is only required to convict, not to acquit. A hung jury is supposed to be nearly impossible, unless some of the jurors refuse to vote at all. That is not is not to say that judges do not allow jurors to think they must be unanimous to acquit, by cleverly worded instructions that take advantage of the jurors’ ignorance. It is often appropriate to apply to such a practice a good 19th century word, tergiversation, clever deception that avoids statements that are demonstrably false, but worded in such as way that someone is led into a mistaken position or action. Textbooks need to do better than abet this practice.

Page 298, box on Morris Dees, should be omitted. He is good at self-promotion and fundraising, but a thorough and objective examination of his work and that of the Southern Poverty Law Center will reveal that he is not someone who should be held up as some kind of hero.

Page 323 on gun control, properly opens the question to debate, but omits to explain the main purpose of the Second Amendment, which was to preserve the capability of the public to resist abuses and usurpations of power by government, by enabling them to organize, train and equip themselves as militia. That omission, in context, is tergiversation.

Page 335, in the discussion of “incorporation” of rights under the 14th Amendment, incorrectly states that almost all the rights recognized by the Constitution have been incorporated. In fact the U.S. Supreme Court has never taken a case on the incorporation of the Second Amendment, and has specifically rejected incorporation of many due process rights, including grand jury indictment (Hurtado v. California, 110 U.S. 516, 1884),  no self-incrimination (Twining v. New Jersey, 211 U.S. 78, 1908), double jeopardy (Palko v. Connecticut, 302 U.S. 319, 1937), non-use of refusal to testify against the accused (Adamson v. California, 332 U.S. 46, 1947), and the 12-person jury (Ballew v. Georgia, 435 U.S. 223, 1978). There is reason to think the Supreme Court might reverse  many of these precedents, but it has not to date.

Appendix, R36, strikes out (rather than blues) Art. IV Sec. 2 Cl. 3, incorrectly indicating (without a caption explaining the strikethroughs) the clause was repealed, but the same point made above for United States Government, page 786, applies.

Preliminary findings and recommendations

Of the four texts examined so far, Magruder’s American Government has the richest content and greatest potential, but also contains the more serious errors, and should not be accepted without a major rewrite, nor should American Government, or United States Government, be accepted until corrections are made. The American Republic should be accepted with the one minor correction.