No matter what your politics, you may well be troubled, as I am, by the efforts on college campuses—as well as in many other arenas—to stifle dissent by preventing people with unpopular views from being invited to speak—or interrupting them so that they can’t be heard. Short of falsely shouting “fire!” in a crowded theater, the First Amendment to the US Constitution should be a protected and revered part of all our public dialogue—from colleges to the White House.
And it seems the College Board, the organization that administers the SAT and Advanced Placement (AP) college entrance exams, has decided to do something about that problem, reports Thomas Friedman in The New York Times. They determined to ensure that the next generation really learns what the Constitution is all about.
It was part of an effort to define the skills and knowledge that best correlate with success in college and beyond. “Their answer: the ability to master ‘two codes’—computer science and the US Constitution,” states Friedman.
The emphasis on the Constitution came about because the folks who run the College Board concluded, Friedman writes,
“that if you want to be an empowered citizen in our democracy—able to not only navigate society and its institutions but also to improve and shape them, and not just be shaped by them—you need to know how the code of the US Constitution works.”
As David Coleman, president of the College Board, put it:
“Our country was argued into existence—and that is the first thing that binds us—but also has some of the tensions that divide us. So we thought, ‘What can we do to help replace the jeering with productive conversation?”
And Stefanie Sanford, the College Board’s chief of global strategy, said:
“The First Amendment lays the foundation for a mature community of conversation and ideas—built on the right and even obligation to speak up and, when needed, to protest, but not to interrupt and prevent others from speaking.”
I read their comments shortly before watching a highly informative One Day University lecture titled “The Constitution: Enduring Myths and Hidden Truths.” The speaker: Andrew Porwancher, an associate professor at the University of Oklahoma who teaches constitutional history.
Porwancher set the stage for the Constitutional Convention in 1787: the delegates were trying “to salvage a country whose very existence was mired in doubt.” (Some have expressed the same concerns about the US today!)
The Continental Congress was “impotent”; “the Articles of Confederation were failing.” Americans who were wary of centralized government had gone too far in the opposite direction: there was no executive branch or judiciary, and a single state had veto power over any actions.
This document the framers came up with wasn’t all that popular; in fact, an effort was under way to throw it out and start from scratch. As the ratification effort proceeded, there were pro-Federalists on one side and anti-Federalists on the other.
(The Federalist Papers, a group of 85 essays, had been written by James Madison, Alexander Hamilton, and John Jay, using the pseudonym Publius, the Roman statesman who helped establish the republic. More on their impact on us today follows.)
So the vote went to New York. Though there were already nine votes, ostensibly enough for passage, Hamilton knew that New York’s prominence meant its position was critical to passage—and thus to the continuation of the republic.
When Hamilton began to speak, two of the three members of the New York delegation were opposed. But, Porwancher reported, “Hamilton spoke with eloquence and passion and moved them to tears.” Still, the vote for ratification was 30-27—pretty close to ending this American experiment.
I won’t go into all the common myths that Porwancher covered in his talk, but here’s one relevant to our discussion: the Bill of Rights was an integral part of the Constitution from the start. Not so.
In fact, it was ratified years later. There was worry—and Hamilton was one of the worriers— that if certain rights were enumerated, others might be considered unimportant; without specific mention, they might later be encroached upon.
But Porwancher says the American people did want fundamental rights enumerated. Patrick Henry disagreed: he opposed the Constitution because he feared a strong central authority, and he fretted that the Bill of Rights would, Porwancher says, “sweeten that bitter pill.” The Bill of Rights was finally ratified four years after the Constitutional Convention.
Interesting fact: The First Amendment we revere—guaranteeing freedom of speech, press, religion, assembly, petitioning the government—often cited as our most significant freedoms, actually started out in third place. It followed two amendments that failed to be ratified: one to determine the size of Congressional districts; the other pertaining to Congressional salaries. So it’s by default that those critical freedoms moved up two notches to their current place of prominence.
Another interesting fact: The Federalist Papers were not important in their day. Porwancher says there’s no evidence “they moved the needle back then.” But in the last few generations, they have played what many consider an outsized role in the selection of judges at all levels of government. Consider that President Trump operated almost solely from a list provided by the Federalist Society in determining his Supreme Court picks.
Says Porwancher:
“We can debate the merits of whether they should be so important today.”
Indeed, many who are concerned that the federal judiciary is becoming far to the right of the majority of Americans’ views believe this debate is overdue. See, for example, Jane Mayer’s discussion in her book Dark Money about the role of the Olin family (whose fortune is tied to DDT), working with the Federalist Society to create a conservative agenda at law schools throughout the country to turn back federal regulations against toxic pollutants.
In many of the major questions that divide us, such as the separation of church and state and the implications of the Second Amendment, some are always asking: What was the framers’ original intent? But Porwancher points out that we can’t always know. “There were big gaps,” he observes. “The framers disagreed on the meaning of their own words, and on clauses they themselves wrote.”
On the question of whether originalism is possible, he says partial originalism is—on matters pertaining to freedom of the press, speech, rights of accused, free exercise of religion, and balance between liberty and national security. (I would imagine many people may find this view debatable.) “The framers understood the threat to national security but still valued liberty,” he says.
Disagreement concerning original intent versus a living Constitution adaptable to its time began with the framers. Hamilton posited that the Constitution must be adaptable so that it can be relevant when unanticipated circumstances arise. Madison’s view was more limited: we have the amendment process to address such issues; they shouldn’t be decided by judicial fiat.
Of course, we want the Constitution to provide clear guidance, not to harp on conflicts but to remedy dilemmas. But “The framers’ time was as toxic and fragmented as our own,” Porwancher says. They suffered no illusions that human beings were without flaws.
Porwancher points out that there’s always been tension between the role of the state and the role of its citizens, and that tension will go on.
“We are a young country, but no other nation has such extraordinary longevity—not in resolving conflicts, but in institutionalizing them. As long as debate endures, the Constitution has succeeded.”
”What they [the framers] understood was that when debate ends, carnage begins. When people stop yelling, violence begins. They drafted the Constitution to keep the conflicts going. When politics ends, violence begins.”
But today, we are hearing political speech that seems to encourage violence. We appear to be witnessing a blurring of the lines between politics and violence that the framers probably also experienced, but don’t seem to have offered guidance about handling. So how do we react? How can we ensure everyone’s right to be heard while keeping everyone else safe?
Several questions from the audience concluded with one from a woman who identified herself as a descendant of slaves. She said she is optimistic in general, but asked: “Will we survive this [the years of Trump] also?”
Porwancher’s response:
“Our remarkable resilience: a republic with little chance of surviving becoming the greatest superpower in the world. I can’t help but be optimistic about our future.”
After viewing Porwancher’s lecture, I reread Friedman’s article about the College Board’s efforts. And I checked the changes being made in the AP curriculum. In addition to focusing on college skills such as analyzing, comparing, interpreting, and communicating political information, there will be
- More emphasis on the U.S. founding documents and other primary sources. A specified set of 15 Supreme Court cases and 9 foundational documents—including the Declaration of Independence and the Constitution—is now required study.
In a clear demonstration that this effort is already bearing fruit, Friedman writes:
“Kids are getting it. An AP US Government and Politics class at Hightstown High School in New Jersey was credited in a Senate committee report with contributing content to a bill, the Civil Rights Cold Case Records Collection Act, which was signed into law last month.”
Reading that gave me chills. Once again, as I have in the past, I was buoyed by hope that the next generation of Americans will do far better than we are doing now.
An important related question: Should we be pushing to ensure that all students in American high schools receive training in civics classes?
Please let me know your thoughts, stories, other resources, and anything else that this post brings to mind. I love to hear from you.
Annie
annieasksyou... 
You raise some great questions. I am with you on the need for kids to get a better grounding in civics in general and in our system of government in particular. For example, I suspect that if you were to ask 100 people to tell you what “Federalism” is you might get 5 who could give you a decent explanation.
From my perspective as a conservative, I see the drift from the original vision of our constitution as having been going on for many decades. I remember being taught in grade school that “our Federal government is a government of enumerated powers.” In other words, if the Constitution does not spell out a governmental power that power is reserved to the States or to the people (10th Amendment). 100 years of court decisions have incrementally gutted this provision. Really, is there anything that today’s Federal government lacks the authority to do?
I agree completely that the 1st Amendment rights to speech are crucial. While the Constitution is aimed at protecting us from Government interfering with our rights to speak, we must by implication recognize that that this concept applies to us all in allowing sometimes unpopular ideas to be shared.
As for the Federalist Society, it goes back only to 1982 and was formed as a way of giving an outlet for a more classically oriented looking at our government. There has been a tremendous shift in how legal education has looked at the law over the last couple of generations and the Federalist Society’s goal has been to champion a legal worldview that has been largely absent from modern law schools (with a few exceptions). That they have been involved in offering ideas for Supreme Court justices has been as a counterweight to the weight that the ABA has carried, an organization that has had a significant leftward tilt going back to at least the 80s when I last belonged to it.
Thanks for this thought-provoking and timely piece!
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It’s good to have another go at civil dialogue with you, JP–and nice that there are not only areas where we differ, but those where we agree as well.
As to your question “is there anything that today’s Federal government lacks the authority to do?,” will you concur with me that there’s been hypocrisy all around? The “small government, fiscally conservative” Republicans have blown holes in the national deficit in recent years far beyond anything the Democrats have done; perhaps that’s one reason the economy in general has done better when the Democrats are in charge. (See Jere Glover, “Trump Is Right About One Thing: ‘The Economy Does Better Under the Democrats,'” Forbes, Nov. 7, 2016.)
I have been thinking of you during this incredible (and scary, to me) power grab by the President, declaring his national emergency despite Congress’s opposition to it. Most people, I believe, think the precedent he is setting vis-a-vis Article 1 of the Constitution, which gives Congress the power of the purse, is dangerous. I would not like a Democratic President to make such an end run around Congress, even though I believe climate change is indeed a national emergency. Yet as I write, it isn’t clear whether enough Republican Senators, who repeatedly castigated President Obama for what they maintained was executive overreach, will protect their legislative prerogative from this President, whose claims of a national emergency have been negated by his own appointees.
Climate change and allied environmental concerns bring me to some of my greatest worries about the Federalist Society’s activities. I understand the drive for unfettered ability to make one’s fortune, though I disagree with it. I do not understand how people can willfully negate the powerful scientific evidence that time is running out on us on planet Earth–as well as their determination to avoid/void regulations that will protect them and their own families from polluted air and water.
Finally, I fail to comprehend that a party that wants government out of people’s lives is increasingly encroaching on the most personal decisions individuals make about their health and welfare. If the founders were conflicted and confused about their own words, I would love to see greater acceptance of the need for ambiguity on the part of those who consider themselves originalists.
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Yes, I think we do agree on some things here. The state of government spending has my “concern needle” touching the bottom of the red danger zone. It used to be said that Republicans who worried about deficits were the tax collectors for the welfare state. It seems that they have decided to be equal opportunity spenders. “Candy and ice cream for everyone!!!”
And Trump’s declaration of an emergency is (in my humble view) a dangerous and foolhardy precedent to set. I hope the courts put a stop to this one.
On your last point, I have difficulty seeing how things like these are Federal Government concerns – but then almost everything is now, so why not this (he said with a resigned sigh that contained just a tinge of sarcasm.” 🙂
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Hi, JP–
Dare I push a bit further? Feel free to disengage at any time, and I will understand–truly.
I find the phrase “candy and ice cream for everyone!!!” puzzling in view of this most recent tax bill, which gave huge banana splits to the top percentages of taxpayers and corporations, while grabbing away the handful of M&Ms that those at the bottom and in the middle had. And you’re well aware what this approach did to the Federal budget deficit. Not surprising that Republicans are no longer touting this legislation as the winning election strategy they anticipated.
All this is happening when our nation’s infrastructure is crumbling–among other drastic needs that many people in addition to me believe the federal government is best able to address–and interest rates have been low enough so that we could, in fact, do so in a way that promotes jobs and prevents the loss of life from bridges, etc., that have already been deemed unsafe.
One question for you: I wasn’t surprised that you oppose President Trump’s national emergency gambit, as your thoughtfulness and integrity are evident to me in our brief exchanges. But I am even more deeply troubled by all those Republicans who find excuses to support him in this power grab. I saw Mitch McConnell say he wasn’t sure whether or not the move was legal–and still he was willing to promise the President he’d approve it in return for Trump’s agreeing not to shut down the government again. President Trump will not always be with us, but when more than a majority of Republicans refuse to call him out on his anti-democratic moves, I fear for our country’s future. Do you share even a scintilla of my concern in this regard?
Annie
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I will excuse you pushing further if you will excuse my tardy response. I have an issue with the terminology of “giving” money to the rich through tax cuts – as though it was not theirs to begin with. We started with a discussion of the Constitution, and I am pretty sure that document does not start from the premise that everything you or I earns belongs to the Government until they decide to let us have some of it back.
And we must make a distinction between the cutting of tax rates and the revenues that result. I believe that revenues are at or near all-time highs. But spending goes up every year no matter what happens to revenues, and this has been going on for a very long time. No matter how much comes in they find a way to spend more. There may have once been an argument for deficit spending as a way to boost a slow economy, but the politicians have abused the concept beyond all recognition.
On your last question, I was of the understanding that the whole purpose of Trump declaring the emergency was that he did not need the input of anyone in congress, so McConnell’s opinion is not very relevant. From where I sit Trump has had a fight on almost everything he has tried to get through the Senate even though there has been a Republican majority the whole time – there have always been a few who balk. It seems like there has been virtually 100% discipline on the other side. It is bad (I believe) that the big issue on every vote is not whether the bill is acceptable or not, but whether points can be scored that will help in the next election.
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I understand your positions as stated, though of course our perceptions differ. But I’m pleased that we can close this dialogue on a note of agreement: I, too, believe that the emphasis on points scored, rather than the substance of a bill, is a bad way to run a government. (I think it’s highly likely, however, that we’d differ on our suggestions for how to address this matter.)
I look forward to reading your next well-researched, interesting post.
Annie
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Annie,
Another well written and informative post.
Re- College Board. I hope they are advising that all HS curriculum should include learning of the ‘2 codes’ and not just college bounds taking AP courses.
I also watched the One Day U talk. He shows how well written the Constitution was, in that it has stood the test of time despite so many events and controversies that have occurred over the years that the Founders would never have considered. And Porwancher’s general optimism for the future of the Constitution and our Country is uplifting coming from someone so well versed in our history.
Don
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Hi, Don—
First, thank you for your kind words and for being such a loyal commenter. I am most appreciative.
Re: the College Board: I don’t think their mandate extends beyond the SATs and AP curricula, but you make an excellent point about the wider need. Perhaps the example they set will spur national debate and encourage broader emphasis on their approach. I do believe at the very least that we need a return to those good old civics classes that were once considered part of the education every high school student received.
Interesting that Porwancher’s emphasis on the well-written Constitution that has stood the test of time stayed with you so clearly, while I found myself focusing on the dissension. He made both points, of course, and you and I were, I think, equally encouraged by his optimistic conclusions.
Annie
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This is super informative, as always. Constitutional literacy may be the next “it” subject, following financial literacy courses that we now see are far more common at schools. I’m encouraged by the optimism. And I continue to be floored at the insight and process of our founding fathers. The one distressing thing I read here — an aside, really, but it hit like an arrow — concerned the Olin fortune. Olin College of Engineering in Needham MA, one of my favorite schools, was founded with that fortune. What’s this mean, I wonder? That it’s never too late to do some good? Meanwhile, I’m forwarding this post to my professor friends who are teaching Con Law to undergrads. As one commented, “I should really be teaching their parents.”
Keep writing, Annie. I learn from you.
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Sorry to distress you about the Olin family; I do recommend Jane Mayer’s book Dark Money, which gives a valuable look at the forces that have been operating “in the dark” to shape our society over the past several decades. And life is filled with ambiguities. Mayer goes into considerable detail about the negative impact of the Koch brothers, but it’s hard to go very far in New York City without seeing a building bearing the Koch name–Lincoln Center, the American Museum of Natural History, the Metropolitan Museum of Art, for example. Publicly, these folks use their money to associate themselves with positive, non-controversial projects. Privately, they appear to pursue a different agenda.
I’m so pleased that you plan to share this post with your professor friends who are teaching Con Law to undergraduates–and what a telling comment you cite!
And thanks, once again, for your encouragement. I am fully committed to continuing with this blog, which I thoroughly enjoy. And though I am eager for comments, I do appreciate hearing from those who say they also enjoy it but would prefer to just go along for the ride, rather than commenting publicly. That’s fine too.
Annie
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Love the post and discussions. Civics should definitely be back in the schools. It should be a required subject for every student in their Junior and senior year. I took civics in 9th grade and couldn’t vote until I was 21..
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Thanks for your emphatic endorsement. I wonder how we get this effort going. I suspect it has to be via a national conversation that moves school boards to act on the local and state levels. If you or anyone else reading this dialogue has any specific ideas, I would love to hear them!
Annie
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Hi, Annie. I think an emphasis on Civics courses in the schools is a good and important step in the right direction. Having read your post and all the comments I couldn’t help but wonder if the articulate student activists from the Marjory Stoneman Douglas High School in Parkland, Florida, had the benefit of Civics classes. It turns out they did and many attribute their activism to the required civics classes in Middle School. There are many articles about it. Here is a link to one of them. https://washingtonmonthly.com/2018/03/05/the-civic-education-program-that-trained-the-parkland-student-activists/
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Fran,
What a thoughtful and excellent addition you’ve made to this post! The Washington Monthly article is eye-opening; I’d no idea that Florida had made such strides (which are now being jeopardized by state officials)—and that other states are moving in that direction. The emphasis on starting in middle school rather than high school makes perfect sense. All in all, it’s a hopeful story, and I’m so grateful that you’ve brought it to our attention.
Annie
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First, in answer to your question, “Should we be pushing to ensure that all students in American high schools receive training in civics classes?” is definitely yes.
Second, things have gotten even worse since you first published this post.
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Don’t I know it! I think I may have called the post “quaint” in view of those changes.
Hope you’re doing well in your new environs.
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Still getting settled in.
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