Gordon Wood, holding forth on “The Origins of American Constitutionalism”, found it first necessary to hold forth on the origins of such a topic on college campuses. While colleges understandably bridle at federal mandates of the sort that Robert Byrd slipped into an omnibus appropriations bill requiring an educational program on the US Constitution each Sept. 17, Wood suggested that the current state of the study of constitutional history might merit such a mandate. (This author wonders why these institutions never bridle at the influx of federal funds into their coffers and why these colleges and universities aren’t more worried about mandates on other American businesses, but this author digresses.)
The response to this mandate varied, and Brown’s was perhaps one of the least sarcastic. Brown inaugurated an annual lecture series on the Constitution without mentioning their motivation, perhaps implying that there is merit in studying the subject above and beyond the reverence Robert Byrd purportedly holds for it. Penn State, by comparison, issued a terse ‘factsheet’ regarding their “compliance” with the mandate leaving little doubt that they would not otherwise be so engaged. On the reactionary flank, Vanderbilt, in observing the mandate, hosted a debate proposing that it was unconstitutional.
It must at least be admitted that Vanderbilt did have a participant representing the position that the mandate was constitutional. The debate was nonetheless cribbed, as it focused on whether the Constitution Day educational program was compelled speech rather than on whether a University has an institutional right to free speech in the first place and whether government grants are neutrally available ‘benefits’ or ‘contract services’ for which the government can set conditions.
Last I looked, the government has been able to compel cigarette makers to speak, and they are arguably as salutary an industry as higher education. Less sensationally, federal government compulsion on farmers to participate in campaigns such as “the incredible edible egg” and “got milk” have been held not to be compelled speech. Farmers are forced to contribute to this advertising in support of a generic promotional message, not simply to set aside some moments at the dinner table to discuss whether “beef is what’s for dinner”.
These forced agricultural cooperatives that violate not only freedom of speech, but self-evidently freedom of association, are actually the kind of micromanagements that many progressives favor – just not when applied to them. These mandates on farmers were recently reconfirmed by the Supreme Court as essentially regulatory in nature in Johanna v. Livestock Marketing Assoc. consolidated with Nebraska Cattlemen, Inc. v. Livestock Marketing Assoc. To his credit, legendary liberal litigator Laurence Tribe represented those contending that such compelled speech is unconstitutional. But he was supported by Amicus briefs flowing not from liberal college law programs or the ACLU, but from libertarian and conservative law shops (Nader’s Public Citizen was an outlier amongst those opposing the “beef checkoff” program, but this group participates not to express concern for the individual rights of expression of farmers, but because they want beef promoted as unhealthy, and mad cow sold as an epidemic).
When academia’s own ox is gored by government, The Chronicle of Higher Education, a supercilious rag of the most isolated, inward focused, back-scratching sort, is filled with articles regarding the threat to academic freedom (a concept on which they are quite lukewarm if it is conceived to include the free speech for right-leaning academics and campus consortiums). Just such a case involving the federal mandate that campuses accepting federal funds give equal access to military recruiters, Rumsfeld v. Forum for Academic and Institutional Rights (as an aside, anyone who mentions the substance of a case in commentary and fails to provide, at minimum, the proper party name citation should be shot upon proper due process inquiry that they did, in fact, leave out such reference), is wending its way through the courts. Aside from the less relevant hand wringing in such scandal sheets as the Chronicle, a gaggle of high-powered academic interests opposed this mandate; filing amicus briefs in support of FAIR were a group of Yale University law professors, seven elite (read Ivy) universities, and the American Association of University Professors – all of whom sat on their hands when a far more violative speech mandate on farmers was at issue last year.
It may be that Ed Rubin, the dean of Vanderbilt Law School, who takes such exception to the mandate to teach the Constitution, was too busy to notice when rebel beef producers took on the agricultural establishment and the U.S. Government in an attempt to thwart the agency capture that has occurred in these marketing programs – direct descendants of a style of institution chartered by FDR in economically misguided but popularly cherished efforts to stem the depression.
Whether it is snootiness or simple conniving, colleges run themselves like businesses but claim a shield from similar regulation and accountability. If colleges were regulated identically to businesses there would be a hell of a lot more academics looking to roll back regulation across the board. But, their interest in the Constitution, as reflected in the recent affirmative action case of Grutter v. Bollinger, is to subvert it to their expertise – to set up the academy as technocrats of constitutionalism.
But, what goes around comes around, and academia’s own Machiavellian constitutional charade in regard to race has ramifications that they now find troubling. Overt racial discrimination was constitutionally allowed in Grutter based on the presumed expertise of educational institutions practicing such discrimination. The statement of various educators and educational institutions that diverse student bodies were an educational necessity was granted deference by the court. In the case Rumsfeld v. FAIR, the ostensible objection of many academics to military recruiters on campus is the “don’t ask don’t tell policy” which is, on its face, discriminatory. Of course, affirmative action is, per se, discriminatory. Despite the academy’s flare for imagining itself as the expert in everything, it is obvious from an institutional perspective that the military would be considered the experts on running the military. I happen to believe that they make far too much of homosexuality in the military (if it worked for Sparta …) – just as I happen to think that colleges make far too much of the necessity for a diverse student body. But once we start awarding deference to educational institutions to violate the constitution, there seems little rational argument that martial institutions ought not receive the same consideration.
One wonders how institutions, that claim independence of thought as such a central purpose that they deserve special treatment, imagine they can maintain this stature if they are not independently funded. An equally interesting question, given Wood’s recitation of the incredible shrinking faculty and resource devoted to constitutional history in the contemporary academy, is their lack of interest in the origins of the freedom they seek to exercise. Is it too much (probably not) to suggest that universities view ‘pedantic’ concern over the origins of the Constitution as a virtual paean to originalism – a concept unbecoming their progressive pedigree?
But a crowning irony is that Gordon Wood’s insights on “The Origins of American Constitutionalism” were useful, and novel, to those of us who are already on the originalists’ team. In an informal colloquy following his lecture, Professor Wood most starkly painted the partisanship of advocates during the debates over adoption of the constitution. Many of us awakened to the merits of a limited federal role in the wake of the Reagan presidency have been given to study of The Federalist Papers – the opeds of their day by supporters of the new constitution. Less government types have taken to quoting reverently from these sources as if each is a chapter from the bible of American constitutionalism.
In a sense they are just such a reference. But lest those of us who see Madison, Hamilton and company as the champions of small government lose perspective, it must be recalled that the alternative to their proposed constitution was not a more powerful federal government, but the less powerful federal government attending the articles of confederacy. In the game of co-opted labels and semiotics, Jefferson and the anti-federalists were actually the federalists; the pro-government folks just got to the name first.
This historic oddity, obvious if one stops to think about, although I never had until the occasion of Constitution Day at Brown, gives context to the gnawing doubts about whether there is such a thing as a compassionate conservative – in other words, a big-government Reaganite. The answer is becoming obvious enough and this is one of those cases where it no doubt could have been deduced logically without the necessity for much empirical testing. And those who invoke federalist ‘restraint’ even while inserting the federal government into everyday life are indeed the intellectual descendants of those who made propaganda in 1787 for how restrained the new federal government would be.
As the news media reads like the typical sine wave of sensationalism, condemning the government for not doing enough to prevent a disaster after Katrina and a week later condemning the government for putting Halliburton on the job, one wonders when it is going to occur to them that if one didn’t dump this in the government’s lap in the first place, then one wouldn’t be disappointed by the predictably inept and inevitably bloated response.
A small anecdote brought this home better than all the pictures of victims and all the recitations of no-bid contracts. NBC’s Forest Sawyer was interviewing someone next to a Louisiana bayou this morning when he noticed a Dolphin trapped in a weedy marsh edge separated from open water by 15 feet of thick but inundated grass. In a typical medium is the message moment, he jumped in to try to help the Dolphin swim clear. After 5 minutes of useless threshing about, he gave up and his film crew called the Navy. It was obvious from his inept if individualist efforts, that only a slightly more organized response by a capable individual of a very few neophytic marine biologists could clear a track through the grasses or improvise a strategy for simply lifting this cetacean across the minimal barrier between it and freedom. The conclusion that the failure of the slightest bit of individual effort to free the animal, then necessitated government intervention, demonstrates how ubiquitous the notion that every hangnail should have its own government bureau.
To be fair to big-government types like Madison and Hamilton, it was likely the farthest thing from their conception that the federal government would be funding colleges and universities in the first place, so they would neither have imagined the need to implement a Constitution Day on campus (or to mobilize the military to save cetaceans). I would gladly return to such halcyon days. If only that were the goal of Ed Rubin and other objectors to Campus Constitution Day.
