Bishop: Constitution Day at Brown - What’s the State of Our More Perfect Union?

Thursday, September 17, 2015


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Massachusetts, once so know for outpacing its neighbors in government theft that it was labeled ‘Taxachusetts’, can brag about its comparative improvement – at least to other New England states. But its proclivity for holidays – Bunker Hill Day, Patriots Day, Evacuation Day, Juneteenth – still outpaces Rhode Island, which holds stubbornly to only VJ (Victory over Japan) Day – despite ‘enlightened’ efforts to eliminate this state holiday or, worse, recast it as Bay Day.*

But has this penchant for relieving public employees’ onerous duty to be hard at work leaning on their shovels spread to the national government? Thankfully not. Constitution Day turns out to be extra work – at least for the vast majority of the nation’s universities that suckle at the federal teet. Despite the fact that campuses prefer to tell the rest of the country what to do, rather than vice versa, Brown University has founded a mature observation of this vital holiday.*

This afternoon, Thursday, September 17th at 4 PM in MacMillan Hall off Thayer St., the Political Theory Project will again convene the school’s observance of Constitution Day.

Giving the Anti-Federalists their due

In the past, some schools bridled at the notion of those that pay the fiddler calling the tune, hosting dismissive carbon copy fora along the lines of: “Is Constitution Day Constitutional?”. But from the first, Brown tapped eminent historian Gordon Wood who entertained us with the ironies that the federalists of our day were the anti-federalists at the founding, opposing the constitutional order to which they now appeal. Of course the contemporary and historical unity of this outlook was a concern that an overweaning federal government would squelch the freedom of yeoman farmers – the middle class of the constitutional era.

225 years later, it is evident that the anti-federalists were right. The attempt to strike a balance between the states and the federal government in the Constitution did not provide strong enough check on federal prerogatives; and what did exist was notably weakened by the progressives with the passage of the 17th amendment providing for direct election of US Senators.

Yet the only weapon in an ordered society that today’s federalists have to cling to in restoring the framework conceived by the founders is the very document they bequeathed us, together with the amendments that, despite any questionable additions, brought us the Bill of Rights as well.

Constitutional Law at Brown

Since the inaugural event, the Political Theory Project has organized Constitution Day to highlight perspectives on what is really meant by fidelity to the Constitution in a number of controversial areas, providing both Brown students and Rhode Islanders with access to the most capable exponents of competing points of view. And Brown continues to surprise with student responses dividing over these issues. 

It was at one such forum in 2008 which posed the question: “Was the new deal a good deal ?” that attracted Steven Calabresi, one of the founders of the Federalist Society, whose friends Richard Epstein and Samuel Issacharoff were speaking. And thus were the seeds planted to bring his renown constitutional law syllabus from second year law students at Northwestern  to undergraduates at Brown. This helped fill the gap left of attention to undergraduate constitutional studies when Gordon Wood retired from active teaching.

One might expect that a course offering from one of the diabolical acolytes of Justice Scalia whose organization is imagined to have an Illuminati like power to pack the supreme court with originalists would not be well subscribed at a University that eschews tradition and attracts the most iconoclastic of student bodies. But this would not factor in Calabresi’s rumpled unassuming but preeminent scholarship on the state of the law, far from the activist of scholarship of those who teach what they think the law ought to be.

The 6th Amendment

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Another Brown figure figures in Constitution Day this year. Political Science Professor, Ross Cheit, who is also chairman of the state Ethics Commission, is engaged in the continuing controversy over the prosecution of child sex abuse cases and the constitutional difficulties posed by the 6th amendment right for those accused to confront the witnesses against them.

Cheit seeks to dislodge the notion that such prosecutions are generally a witch hunt. An equally animated contingent decries them as shot through with suggestively induced charges largely characterized by mass hysteria. He has helped to invite exponents of these competing views to campus this afternoon.

Richard Friedman, who publishes that confrontation blog , contributed scholarship cited by the Supreme Court in Crawford v Washington in holding that statements to investigators given outside the court setting would not be admitted to trials if had not been subject to cross examination.

Tom Lyons likely has contributed to an apparent walking back of that standard in Ohio v Clark this past term when the court held that such uncrossexamined statements, if not elicited as testimony for legal purposes, might be admitted, esp. in the case of very young children who could not have the intent to “testify” by such statements.

This seems necessarily accommodating to extremely young witnesses but of course they are no doubt more subject to suggestion as well posing a conundrum that has been insoluble to date. Indeed, Lyons proposed paradigm itself is difficult to accommodate within our concept of American criminal justice as it essentially presumes the guilt of the accused: “Courts should hold that defendants have forfeited their confrontation rights if they exploited a child’s vulnerabilities such that they could reasonably anticipate that the child would be unavailable to testify. Exploitation includes choosing victims on the basis of their filial dependency, their vulnerability, or their immaturity, as well as taking actions that create or accentuate those vulnerabilities.”

Of course any clever pedophile might indeed choose a victim based on their vulnerability, but the assumption of this standard, that admits testimony in contravention of 6th amendment principles based on the identify of the accuser, must presume guilt in order to designate that individual as a “victim” whose heresay evidence is admissible.

The yawing results of the court over relatively short spans of time on a relatively non-ideological battlefield demonstrate just how difficult it is to realize the more perfect union.  But we can’t be relieved from trying. The frame of government bequeathed to us has been a lasting model for the American experience.

The Shining City on the Hill

It may indeed have been hubris, if thoughtfully so, to imagine a beachhead for democracy in the middle east based upon the liberal principles of our own compact. We cannot even say precisely what is right under our constitution, nevermind decree that it’s values are right for others.

If this sounds like relativism, it is because it certainly is a species. The inciteful philosopher, Isaiah Berlin, diminishes the sting by considering it pluralism. If one can understand the combination of human motives and environment that give rise to a competing way of life, there is not necessarily always a way to choose one as right or wrong.

Indeed, Berlin became convinced that the Enlightenment was wrong to seek a single universal and utopian way of life for man. In his work I see a kind of philosophical federalism. It does not deny that some very narrow sphere of universal morals – perhaps natural law of a sort -- tends to emerge. But attempts to increase that sphere actually tend to diminish it because of the individualist human nature that rejects being instructed on how to live the good life by ones betters. 

Rather than condescend to the world on the basis of the fabulous, if fallible, compact under which we live, America must continue to aspire to be the shining city on the hill. One gathering upon that acropolis may certainly be amongst those who can leave work in time to join this event at Brown (after all, college kids have to party . . . eer study later).

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Brian Bishop is on the board of OSTPA and has spent 20 years of activism protecting property rights, fighting overregulation and perverse incentives in tax policy. 

*The first paragraphs were originally published in a Constitution Day essay for the Brown Spectator in 2008. 


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