Bench Memos

Harvard Hates the Constitution

In 2004, at the behest of Sen. Robert Byrd, Congress passed a spending-bill provision requiring that on Constitution Day (now officially and foolishly renamed “Constitution Day and Citizenship Day”), educational institutions receiving federal funding–i.e., nearly all of them–must host some kind of educational programming on the Constitution on or about September 17, the anniversary of the last day of the Constitutional Convention of 1787.  Some colleges and universities do not comply with this federal statute, and probably count on being inconspicuous in their neglect.

Harvard University cannot count on being inconspicuous.  But the organizers of this year’s Constitution Day event gave Congress a nicely conspicuous poke in the eye by putting on a panel dominated by scholars who loathe and despise the Constitution.  As reported by the Harvard Law Record, the university hosted a discussion chaired by Nancy Rosenblum and featuring Charles Fried, Mark Tushnet, Alexander Keyssar, Sanford Levinson, and Michael Klarman.  Without seeing a full transcript or video of the event, it’s hard to know exactly how awful it was.  But the Record’s report sounds awful enough, with Fried offering a sheepishly half-hearted defense of the Constitution, Tushnet reluctantly saying a few good words in order to “balance” the event, and Keyssar, Klarman, and Levinson falling over each other to say how much contempt they have for the nation’s governing charter.  Racist, sexist, anti-democratic, chaotic–you name the pathology seen by leftist eyes, the Constitution’s got it.  They don’t like the separation of powers, they don’t like federalism, they don’t like the electoral college, and on and on.  It’s a strange feeling to be so strongly affirmed in my admiration for the Constitution by observing the qualities of its enemies’ arguments–and at the same time to be so dismayed by the quality of teaching in the most prestigious law schools.  For it appears that the Constitution’s critics do not much like liberty, and would gladly sacrifice the institutions that secure its blessings in order to gain a good deal more “equality” (a larger welfare state, socialized health care, etc.)

Or so it appears–as I say, I haven’t seen the full text or video of the event.  But here’s a priceless boner from Prof. Levinson, assuming the Record quoted him accurately:

“To say that decisions made in 1787 should bind us today because those decisions were made by great men,” he observed, “is like saying that we should be bound to the structure of the U.N. Security Counsel [sic] because the political needs of Stalin and Churchill were part of the logic of its formation.”

But of course no one has ever argued that “decisions made in 1787 should bind us today because those decisions were made by great men.”  What people have argued is that decisions made in 1787 should bind us today because those decisions became the Constitution, by the consent of the governed.  And because the Constitution is, rightly, regarded as a smashing success as these things go, the framers of it have been celebrated as great men.  And so they were.  No gnawing criticism of modern mice will change that.

As for the Constitution Day celebration at Harvard University?  No great men in sight, I’m afraid.