The Constitution Goes to College

Five Constitutional Ideas That Have Shaped the American University

Rodney A. Smolla

• Publisher: NYU Press
• Year: 2011
• ISBN:
  9780814783788
• Topic: Law
• Subtopic: Public Law
• Index: Law

American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on our campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values.

In The Constitution Goes to College, Rodney A. Smolla—a former dean and current university president who is an expert on the First Amendment—deftly uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, Smolla demonstrates how five key constitutional ideas—the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality—are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life.

Ultimately, Smolla compellingly demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.

1
Five Constitutional Ideas That Have Influenced the Identity of American Universities

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

—Chief Justice Earl Warren in
Sweezy v. New Hampshire (1957)

This, I think, is what happens when a censor looks over a teacher’s shoulder. This system of spying and surveilance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect. A system which directly or inevitably has that effect is alien to our system and should be struck down. Its survival is a real threat to our way of life. We need be bold and adventuresome in our thinking to survive. A school system producing students trained as robots threatens to rob a generation of the versatility that has been perhaps our greatest distinction. The Framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead.

—Justice William O. Douglas, dissenting in
Adler v. Board of Education of the City of New York (1952)

De Tocqueville with a Twist

Alexis de Tocqueville, in his classic nineteenth-century study of the United States, Democracy in America, observed that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”¹ What de Tocqueville aptly observed arose from the special role of law and lawyers in American society, particularly the special role of constitutional law and constitutional lawyers. This book is an update on de Tocqueville, with a twist. The argument advanced here is that there is scarcely any constitutional question that arises in the United States that does not devolve, sooner or later, into a campus question.

The issues and conflicts that arise on our college and university campuses constantly present themselves in a constitutional dimension. Constitutional law, constitutional values, and constitutional traditions appear to either directly control or indirectly influence the ebb and flow of many campus decisions and events. The reverse is also true. Our constitutional law is constantly being shaped and forged by the hydraulic pressure exerted by our national culture. The nation’s colleges and universities in turn exert a powerful influence on our culture, creating a feedback loop in which constitutional values influence the nature of universities, which then influence the nature of our constitutional values.

There is nothing novel about the observation that issues of American constitutional law often surface on the modern American college campus. Modern campuses are visibly and notoriously awash in conflicts implicating such constitutional themes as freedom of speech, separation of church and state, race and gender discrimination, or privacy. But there is more to it than just that.

The American university is not simply a location where constitutional conflicts may arise. The American university is also a collection of ideas—a collection that parallels, in striking ways, the collection of ideas that have influenced and shaped the American political, legal, and cultural identity for over two centuries, ideas that emanate from the unique role that the American Constitution plays in the forging of our national identity. The “idea of the American university” is not just the “idea of a university,” but the idea of an American university. A large part of this conception of the American university is influenced by the central ideas that define American society, which are expressed in the Constitution of the United States.

My claim is that a handful of large “American constitutional ideas” have heavily shaped the “idea of the American university.” In arguing that American constitutional ideas have “shaped” the idea of the American university I mean both more and less than a claim that “constitutional law” has often been brought to bear, in a formal and legal sense, on American colleges and universities. Lawyers and judges know that some precedents are “controlling” and some merely “influential.” I will talk about both, but the heart of this book is less about control than influence. My thesis is that the American Constitution and the American college campus are in a very deep and fundamental sense connected, and that we may learn a great deal by exploring that connection.

Lessons from Einstein

In the critical formative years of the modern American university, the great centers of higher education in the United States sought to emulate the great centers of learning in Europe. Albert Einstein was a professor at one such center, the University of Berlin, when in 1918 student revolutionaries seized control of the University, jailing the University rector and deans. In an act of extraordinary individual courage, Einstein sought to secure the release of his imprisoned colleagues by personally addressing the agitated mob of students. He mounted the stage and stated, boldly and defiantly, “I have always thought that the German university’s most valuable institution is academic freedom.”² The students, perhaps embarrassed by Einstein’s invocation, took a middling position, voting that they lacked the legal authority to release the jailed academics. And so Einstein set out to visit the new German Chancellor, who was apparently overwhelmed with the surge of events. The Chancellor scribbled a written order releasing the rector and deans.

Buoyed by his newfound success as a legal advocate, Einstein the next day returned to the maelstrom, addressing yet another restless mass meeting, at which he described himself as “an old-time believer in democracy.” He then lectured the new self-important revolutionaries: “All true democrats,” Einstein warned, “must stand guard lest the old class tyranny of the Right be replaced by a new class tyranny of the Left.”³

Academic freedom is a value cherished by scholars and institutions of higher learning throughout the world. In the United States, however, the traditions of academic freedom of which Einstein spoke blended with our constitutional traditions to create a uniquely powerful combination. Higher education in the United States absorbed what D. H. Lawrence, describing American literature, once called the “spirit of place.”⁴

The idea of the university that was imported from Europe married with the idea of robust protection of civil liberties that is at the soul of the American constitutional unconscious, to place the ideal of academic freedom at the center of the value system and the sense of identity that would become the modern American university. The European ideals of Lernfreiheit, or “freedom to learn,” and Lehrfreiheit, or “freedom to teach,” merged with the American Constitution, including the Bill of Rights.⁵

Poetic Tensions

Justice Oliver Wendell Holmes once observed that “general propositions do not decide concrete cases.”⁶ Our constitutional law is replete with “general propositions,” as captured in phrases such as “freedom of speech,” the “equal protection of the laws,” or the “system of checks and balances.” In our broader public discourse, these phrases may become a kind of partisan verbal confetti, strewn into debates by zealous advocates who often presume, wrongly, that all within earshot agree with the meaning they have assigned to these phrases.

As the Holmes aphorism suggests, few Americans are likely to be against “freedom of speech,” “equal protection,” or “checks and balances” as broad abstractions. On these points, there’s a general consensus of sorts: that we are a nation conceived in dedication to certain ideals about freedom and equality and checked power, and that we continue to feel so strongly about those ideals that they have become “national brands” resonant with symbolic meaning.

Beyond these broad ideals, however, notions of liberty, equality, and checked and balanced power are highly contentious and controversial, shaped and stressed by historical events, cultural forces, political pressures, and judicial interpretation. Our Constitution is not just a symbol, stored behind glass in the National Archives, with facsimile copies sold as souvenirs in gift shops in Philadelphia or Colonial Williamsburg. Our Constitution is a working stiff, a laborer in the arenas of national law, politics, and culture. As an active, dynamic, working document, the Constitution is filled with tension and conflict. Just as Newton’s third law of motion poses that for every action there is an equal and opposite reaction, in American constitutional experience, for every value there is a counter-value, for every argument a counter-argument. The story of our constitutional experience has been an ongoing story of resolution of competing constitutional values.

This is not necessarily a negative thing. Not all tensions are bad. There are certain “poetic tensions” in the life of the mind and the life of society that bring out the best of human potential, spurring our creativity and enterprise. My view of the brilliance of the American Constitution, and my view of the brilliance of American higher education, is grounded in a positive and optimistic belief in the good that can come from the creative and thoughtful resolution of poetic tensions.

Five fundamental tensions within our constitutional tradition have exerted a particularly significant influence on the shape and definition of American universities: (1) the debate over whether we have a “living Constitution”; (2) the division between the public and private sphere; (3) the distinction between “rights” and “privileges”; (4) the notion of “ordered liberty”; and (5) competing conceptions of equality.

Do We Have a “Living” Constitution?

If you had to pick just one issue of American constitutional law, an issue that most centrally defines the character of the American constitutional experience, what would it be? Perhaps you would nominate the question of the proper scope of the War Powers, and whether the authority to make society’s ultimate decisions over war and peace should reside with the President or the Congress. Or perhaps you would choose the meaning of the phrase “equal protection of the laws,” and the consequences of that meaning for matters relating to race, gender, or affirmative action. Or you might claim that what matters most is the meaning of “life, liberty, or property,” and the question of whether decisions relating to reproduction, sexuality, or death with dignity are encompassed by that phrase. Or maybe you would argue that the most important constitutional issues we face involve the meaning of phrases such as the “freedom of speech,” or the “free exercise of religion,” or “cruel and unusual punishment.”

All of these would be worthy candidates, but not my nominee. My suggestion is that the most important constitutional issue, rising above all others, and cutting across all of the Constitution’s famous clauses, is an issue of interpretation: do we have a “living” Constitution? This is, in a sense, the mother of all American constitutional debates, an issue that transcends all questions of constitutional law.

At the threshold, before we begin ciphering through solutions, we must come to some understanding of the nature of our algebra. At the threshold, we must grapple with the issue of constitutional meaning itself, the question of how we are to read, interpret, and apply the Constitution as a functioning legal document and working charter of government. Should our approach to constitutional interpretation be static or dynamic? Static answers treat the Constitution as a set piece, and look for its meaning in the literal words of the text, the intent of those who wrote the text, or the original understanding of those words within society at the time the words were adopted into law. Dynamic answers treat the Constitution as a moveable feast. Dynamic approaches look for the meaning of the Constitution “in between the lines” of the text, are willing to credit the intent of those who must currently live with the text over the intent of those who wrote it, and care more for the contemporary understanding of those words than the understanding at the time the words were originally adopted. The dichotomy posed here goes by many different names in our cultural lexicon, which have positive or negative casts depending on one’s point of view. One person’s original understanding is another’s reactionary slavishness to a dead past. One person’s “living Constitution” is another person’s unprincipled subjective relativism.

If the mother of all constitutional issues is this question of interpretative methodology in determining the Constitution’s proper meaning, the mother of all matters relating to the character of the university is wrapped up in the pliable phrase “academic freedom,” and the struggle to supply that concept’s proper meaning. As discussed in chapter 2, academic freedom is inexorably pulled into the maelstrom of the “living Constitution” debate, because the words “academic freedom” do not appear anywhere in the text of the Constitution.

Our thinking about academic freedom permeates all elements of university life. Virtually all issues central to the identity of the American university gather sustenance from this font. Traditions of shared governance, intellectual rigor, justifications for tenure, requirements of due process, arguments for diversity and affirmative action—essentially all the central organizing values of the American university partake in one way or another in assumptions about a larger transcendent value that permeates the very idea of the American university, an idea large enough and profound enough to mean many different things to many different people: the idea of academic freedom.

If academic freedom is to exist as an American value of constitutional dimension, it must therefore be an implied right, not a literal right. The principal values encompassed by academic freedom in the ways we now typically employ the phrase were not within the forefront of the minds of those who adopted the Constitution, if they were even within their minds at all. If academic freedom is to be recognized as an implied right, it must thus be one implied by contemporary understandings of the meaning of the constitutional text rather than historical understandings.

The Public and the Private Sphere

A second powerful assumption of American constitutional law is that society is divided between a public and a private sphere, between that which is governmental and that which is not. Throughout the history of the republic we have, as a nation, debated how much of our society should be swept within the superintendence of the state, and how much left to individual choice and private enterprise. When suddenly confronted by the precipitous collapse of credit markets and financial institutions in the autumn of 2008, our entire national conversation turned to bailouts, the use of “TARP money,” billion-dollar government shares in banks and auto companies, and the larger questions of political and economic organization that bear on what should or should not be treated as an appropriate government enterprise.

Parallel to issues of ownership and control are issues of conduct and accountability. The Constitution directly constrains the conduct of government, imposing on government restraints such as the obligation to respect freedom of speech, to not respect any establishment of religion, or to extend to all citizens the equal protection of the laws. Private individuals and private organizations, from corporations to nonprofits, are not bound by such constitutional norms. Yet as a nation, we have often chosen to extend constitutional norms outside the public sphere and into the private sector. The Civil Rights Act of 1964 imposed sweeping rules of equality on virtually all segments of private commerce, for example, effectively extending the sweep of the guarantee of “equal protection of the laws” outside the public sphere and across most of the private sphere.⁷

These extensions of public norms to the private sphere have always come at cost. They extend the jurisdiction of the state and simultaneously reduce the autonomy of individuals and private associations. In economic terms, this replaces government decision-makers for the private decision-makers of the marketplace. In political and social terms, this replaces public values with private values, and consequently diminishe...