The Constitution: Can It Help Us “Replace the Jeering With Productive Conversation”?

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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.

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Alexander Hamilton

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.

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James Madison

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