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The Richly Debatable US Constitution

without the document, would our tradition of argument exist?



Last spring, Senator Robert Byrd (DWV) drafted language requiring educational institutions that receive federal funds to hold an educational program on the US Constitution on September 17, the day the document was signed in Philadelphia in 1787. Attached as a rider to an appropriations bill, the provision was quietly voted into law. Thus was Constitution Day born, and with it, a controversy.

Is Constitution Day constitutional?

Yes: It does not mandate the espousing of a particular viewpoint; no, it impinges on academic freedom; yes, it is merely analogous to a public posting of the law; no it… Meanwhile, Boston College observed the day with a panel discussion chaired by BC political science professor Rowell S. Melnick. The panel featured BC Law professors Mary Bilder, Gregory A. Kalscheur, S.J., and Mary-Rose Papandrea.

Bilder hailed Constitution Day for its educational value. Americans know far too little about this document, she argued, and attributed the reason for this constitutional illiteracy to the nature of the Constitution itself —to its written and unwritten characters.

Education has emphasized the Constitution’s written character, which lends itself to a question-and-answer catechism approach, Bilder said. How many senators are in the US Senate? What are the names of the three branches of government? The Constitution answers these unambiguously. Yet education has not adequately addressed the Constitution’s unwritten nature, where the answers lie between the lines and beyond the borders of the written words. “The continued vitality of this unwritten Constitution depends on America’s belief that they, as much as those who lived centuries before, have a role in interpreting and understanding the written Constitution,” Bilder said. “The written Constitution will likely survive without regard to education; the continued legitimacy of the unwritten tradition will not.”

The unwritten Constitution—with its dependence on an educated populace to engage in principled, reasoned, interpretive thinking—gave rise to a tradition of argument. “Our American constitutional culture includes a tradition of arguing about what the Constitution means, of arguing about how the Constitution should be interpreted, and of arguing over whether and how the meaning of an eighteenth century text might develop over time,” said Kalscheur. This tradition was recently evident when the US Supreme Court upheld the constitutionality of a Ten Commandments display on public property in Van Orden v. Perry, but not in McCreary County v. ACLU of KY. “In reaching this split decision, the nine-member court issued ten separate opinions,” said Kalscheur. The court had a hard enough time agreeing on an outcome; it never did resolve the question of what constitutional analysis should apply. Should precedent rule? History? The Founders’ original intent? The country’s democratic aspirations? Universal principle, or the case-by-case exercise of legal judgment? Disputes like these signal that our constitutional tradition remains healthy and relevant, Kalscheur maintained.

The ongoing tradition of argument continues to shape America’s unfolding. Consider the matter of the imprisonment of New York Times journalist Judith Miller, who chose civil disobedience over compliance with a court order to reveal confidential sources. Miller had been subpoenaed to testify before a grand jury, which was investigating a Bush administration leak that revealed the identity of CIA agent Valerie Plame. Absent a federal shield law, Miller relied on the First Amendment. The controlling case was Branzburg v. Hayes (1972).

In Branzburg, the Supreme Court rejected the claim that the First Amendment created a privilege protecting reporters from having to appear before a grand jury. But it was a 5-4 decision, with Justice Lewis F. Powell concurring in the result, not the reasoning. “To many courts and commentators, Justice Powell’s concurring opinion in Branzburg rendered the majority’s plain rejection of a First Amendment right less clear,” Papandrea said. “As the debate about the scope of reporters’ shield laws rages in courts and in Congress, another important issue has arisen: Who is entitled to invoke the privilege?…The development of the internet and of blogs in particular have raised a host of new, perplexing questions.

And so the tradition of argument, of how to interpret that unwritten eighteenth century text, marches on.

—Jeri Zeder

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