Justin Dyer

Constitutional Crisis or Consensus?

Air Date: September 30, 2017

University of Missouri professor and Kinder Institute on Constitutional Democracy director Justin Dyer talks about polarization of legal interpretation.

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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Our constitution works. Our great Republic is government of laws and not of men. Here, the people rule. Newly sworn in president Gerald Ford reassured the nation with those words. Even as he recovered from personal defeat against then Governor Jimmy Carter, Ford embraced an America enshrined in liberty, in his final State of the Union in 1977, reporting to the nation. “The genius of the American system is that the opposition party doesn’t go underground, but goes on functioning vigorously, and our vigilant press goes right on probing and publishing our faults and follies, confirming the wisdom of the Framers of the First Amendment.” Oh, the words of a statesmen do we regret not hearing in what appears to be increasingly a fractured, discordant age of American democracy. And, according to public opinion surveys, Republican voters are increasingly abandoning faith in these institutions, and voters broadly share in an abundance of distrust. Today, we explore this transformation and the constitutional state of play in our politics, from the statehouse to the campus, with University of Missouri professor, Justin Dyer, Director of the Kinder Institution on Constitutional Democracy, Dyer convenes what he calls the first-ever self consciously inter-ideological center for the study of American political thought and history, and I welcome him today. Justin, thank you.

DYER: Thanks for having me.

HEFFNER: As you think about constitutional crisis, it seems to me we’re exploring that along two parallels. There’s the crisis of what seems to be increasingly autocratic governance, and then, at the same time, there’s the crisis that seems to be a widening gap in the way we interpret the constitution.

DYER: Well, I think what we’ve been trying to do a lot at the Kinder Institute is take a long view of some of these issues, and think historically about where we are, where we’ve come from. And in some ways it helps, I don’t know if this is encouraging or not, to remember how divided we’ve been in our past. And so, we are at a, a moment of crisis in all sorts of different ways, we have challenges. I’m thinking about our constitutional consensus. What is it that unites us as a people? What is it that draws us together? But it’s also helpful sometimes I think, to remember that our campaigns and elections have been vicious from the very beginning, that we have had moments of crisis leading up to, ultimately, civil war, where 600,000 American lives were lost. We’ve had moments where, you know, the sitting Vice President of the United States shot and killed our former Treasury Secretary in a duel. Uh, so we’ve had challenges in terms of political discourse for a long time. But there seems to be something unique, I think, in the present moment, and unique in the modern era, in terms of just how divided we seem to be on college campuses, in our public discourse at large, in our cable news, and in some ways, it might be returning to a previous era.

HEFFNER: What is that previous era?

DYER: Well, you know, our associate director for the Kinder Institute, Jeff Pasley’s a historian who studies the early print media, and how early journalists influenced politics. And he’ll, you’ll have a conversation with him every once in a while and he’ll say something like, oh, that’s so 19th century. But even having somebody like Steve Bannon in the White House, who’s a journalist by training, who’s working directly in the White House, this is not unprecedented in American history, and this is something that we had early on. We had a partisan press early on. Most of the newspapers around the country are, are throwbacks form a time when a political party actually ran the newspaper and, and owned the newspaper. And so in some ways, I think, you know, history begins to rhyme, and you see things that are, are repeating itself. And so we’ve, we’ve had moments of challenge in our history. I think, going back to those moments of challenges is important for us, to try to understand where we’ve come from, uh, and where we are right now, in this moment. And this moment, it’s unique, but it’s not unprecedented.

HEFFNER: There are red states, blue states, and there are red districts and blue districts. How do we try to bring together these constituencies, which you do at the institute, with students of a spectrum of political identities. How, how do you being to revive consensus.

DYER: One of the things that’s encouraged me, is to realize how, for all the talk of polarization, for all of our talk about how divided congress is, for how divided the American people are, and even these polarized districts, Republican districts and, and Democratic districts that are safe districts, the American people are not that far apart from each other. And when you bring people together, public opinion polls will, will often demonstrate this, that the, the um, that the median opinion of people, often will be closer to the center than their representatives in these polarized districts. And so there’s a way in which congress itself might be more polarized than the American electorate, uh, because of the way that we draw districts, because of uh, the way that we run our elections. With students on campus, my, my experience has been very good, that students are engaged, they’re interested, they want to learn, they want to talk to each other. My experience with faculty has been the same, that I have, uh, faculty across the political spectrum in the political science department at the University of Missouri, we have faculty across the political spectrum in the Kinder Institute. And yet we have been part of a common intellectual project, we’ve talked together, uh, we’ve mutually explored different topics. We don’t always agree but we’ve, we’ve had a good experience doing this. And it’s so counter to the narrative that you hear today in the media to, to know that that’s going on on college campuses.

HEFFNER: So, if you take an instance like Charlottesville, and what we saw to be s domestic terrorism incident, when you look at the young men who were constituted in that alt-right, or racist resurgence, how do you, how does your interaction with the student body inform the way that you look at these predominantly young men who, who were instigating this crisis in Charlottesville.

DYER: I think it’s a huge challenge. We have to know more about eh alt-right first. We have to know more about what we’re thinking about. There’s a political scientist at the University of Alabama named George Holley who just wrote a book with Columbia University Press, on the alt-right. and so far as I know, he’s one of the only academics studying the movement and trying to understand really what’s motivating the people who show up in Charlottesville. But I think a couple of things to take away or, or even think about as we’re looking at that is, as far as the media accounts that came out after the event, it sounds like most of the people were from out of state, or at least not from Charlottesville. They were not students at the University of Virginia. And it’s helpful to even keep that in mind as we’re talking about polarized campuses, or polarized student bodies, that the students at the University of Virginia, so far as I can tell, were united against what they saw as, as those violent protests on their campus. And so, Republicans and Democrats, liberals and conservatives, I think could unite, uh, around this idea that what those protestors are doing is not only problematic but evil. And I think that we, we have to be able to, to have moral clarity when we talk about these issues.

HEFFNER: Within the constitutional parameters, you know, how you can take disaffected youth who may not be enrolled in civic institutions, and bring the set of values that you teach at the institute?

DYER: I don’t know if there’s an easy answer to that. It’s a…

HEFFNER: There are no…

DYER: Generational,

HEFFNER: Easy question or answers,

DYER: There’s never an easy answer.

HEFFNER: Right.

DYER: I think it’s a generational…

HEFFNER: Uh huh.

DYER: Challenge. I think it’s multifaceted. It’s largely cultural. It’s not any one institution’s responsibility. Or maybe to put that a different way, it’s all of our responsibilities in our various institutions that we work in, to try to address this problem. But having thoughtful, civil discourse on issues that matter is extremely important. So, how do we do that? We have to have at last some shared framework to approach these issue. It’s never gonna be 100 percent consensus. We’re never going to get 100 percent of the people on board. But we need to have a dominant cultural framework, where we understand that the point of discussion, debate, is the pursuit of truth, that there’s something to understand together and that we’re mutually engaged in this project, to understand more, to grow in wisdom, to grow in truth, and if we don’t have that basic framework for our debates, if it’s simply power politics or power struggles, then there’s no coherent framework to think of why we would engage in civil discourse and debate together in the first place.

HEFFNER: If you think about the historical foundation that’s required, when you hear that Ford quote, in his final state of the union, when he’s handing the torch to newly elected President Carter, and he is reminding Americans about the important, decisive role that the free press played in the accountability of our democracy, do you think that that is still relevant today. And do you think that the body politic is still interested in, in that legacy.

DYER: I hope they’re interested in that, interested in that legacy. I certainly think that it remains as important as ever, to have a free press, to have a vigilant press. It sounds like high philosophy, but the basic underlying premises of, of the American constitutional order begins with the words in the Declaration of Independence, that we’re all created equal, that we’re endowed by our creator with certain inalienable rights. And then it moves on, I think very importantly to just governments being derived from the consent of the governed. And this idea of the consent of the governed really goes back to the idea of human beings as rational animals. And, and, again, it sounds like high philosophy, but we’re the kinds of beings that can give and understand reasons for our actions. And what does that mean, exactly. It means that we should expect others to rule us with our consent. Those who have positions of authority and power over us, by giving and receiving reasons. And all of these things end up going together. We’re going to give rational arguments to one another. We are gonna be ruled with our consent. We’re gonna have the rights to petition the government for a redress of grievances. And we need a free people with a free press to be able to have this, uh, experiment move forward.

HEFFNER: You wrote along with your codirector, your deputy director in the Kansas City Star, “American universities have come off in recent news as lonely, dangerous, and polarizing places.” “Mazoo,” your home state and university, University of Missouri, “has been at the center of this storm, and yet our experience of American academia has been very different from the simplified reports in the media.” You go on to write, “When our classes and public lectures take on controversial topics, we keep it on e philosophical and historical plane while still tackling difficult issues, and highlighting different perspectives.” When you think of free speech on campus now, there’s been a revival of, of interest in that subject, and there have been various episodes we’ve discussed on this program, most recently with Caitlyn Flanagan who’s written about this in the Atlantic Magazine.

One of the paradoxes, and I smile, thinking of what you said, rational animals, as if that’s not oxymoronical or paradoxical in some way, which is, the right to free speech, um, I don’t think liberals or conservatives can bake their cake and eat it too. And I think there’s a lot of baking of cakes and eating it too in both quarters of, whether you identify yourself as more progressive or conservative. Case in point, if you look at the idea that universities should be able to invite, or constituencies within universities should be able to invite speakers form a wide variety of thought, um, in the same breath, institutions of higher learning, with admissions policies or their hiring practices, have to exert a moral compass in determining their free speech boundaries. There’s a suit being filed by rejected students, calming that affirmative action disadvantaged them, white students. And I don’t understand, help me understand, if you think about the constitutional right to free speech, just as Citizens United, for better or for worse, gave companies the right to have that speech as much as individuals, why, why would not a Harvard or a University of Missouri be able to have the right to admit students, not just on the basis of scores, on the basis of character, if we’re saying that we want to invite free though, doesn’t it apply to these institutions as much as it does to individuals.

DYER: Yes, and you raise an interesting question, I think, and it goes back to these dual rights that are both in the, the First Amendment. It’s the freedom of association and the freedom of speech, and how we think about the interplay between those two different things that we value as a society. Can an organization, it might be different if it’s public or private. But do they have a freedom of association to decided which students they’re going to admit, and which students they’re going to reject, and the grounds and the reasons for why they might reject those students? I think it’s complicated. As I said before, all these questions are difficult. On the freedom of speech side of it, I, I think one of the things that I think we need to do is try to get a better handle on why we protect freedom of speech in the first place. Thre’s a generation of students I think that have forgotten the fundamental rationale of having free speech and free discourse, particularly free speech you disagree with.

And the underlying assumption that, going into the, the protection for free speech, is that there’s something for us to debate and discuss, and come to together, that we can arrive at some knowledge together, and that allowing the opposition to have its say, is a fundamental part of that process. But it’s a process, and the process requires norms of civility, it requires rigorous inquiry, it requires truthfulness and honesty, and when that starts to break down, when you have people on campus that are simply trying to provoke, when you have people on the internet, you know, you just had an episode about internet trolling and what that looks like, and even some of it’s computerized, that, when we have that, our discourse breaks down precisely because it doesn’t have an end or a purpose anymore. There’s no point to what we’re doing other than to simply provoke one another. And I think that’s a real challenge…

HEFFNER: Right.

DYER: And something we have to work on.

HEFFNER: As long as trolls are the dominant actor on social media, it’s becoming anti-social media.

DYER: Yeah, exactly. And, and I think so much of…

HEFFNER: And, and,

DYER: Yeah.

HEFFNER: Speakers who, whose design is to come to campus to provoke and not debate, I’m wondering, where do you draw the line, Justin, from your experience, where you view their intent as either malicious, but not, certainly not deliberative in welcoming other debate, and therefore you say, this issue, for example Nazism…

DYER: Yeah.

HEFFNER: And Richard Spencer. When do you say, this issue is closed and not open for debate.

DYER: We have, going back to this idea of free speech and, and what its purpose is, I think we have to be able to make qualitative judgments about the value of, of speech. And what I mean by that is, is that we’re not relativists. The Supreme Court, in a case called Cohen versus California, famously involving a guy who wrote F the draft on his jacket, went into a courthouse, the court’s deciding whether this is protected speech. And Justice Harlan has a famous line where he says that, that one man’s vulgarity is another man’s lyric. And I don’t think that’s true at all. I don’t think that we’re complete relativists, that one man’s vulgarity is another man’s lyric. I think we actually can make judgments in this area, and decided what speech is better and what speech is worse, whether somebody engages thoughtfully, whether they’re actually engaged in simply provocation.

Now, having said that, I don’t think that means that the speech that’s simply a provocation, or the speech that is not engaged in the serious discussion inquiry, should therefore be penalized with the force of law. I think that there are good, prudential reasons why we don’t do that, and why we don’t want to do that. When is it illegal, or when could it punished with the force of law? And I think that if you had a good attorney in here, they could give you a list of reasons, but they would certainly include making threats against other people, threatening damage to other people’s person and property, and that crosses a line, and I think that’s what you saw in Charlottesville. That’s not free speech. Um, when you’re engaged in, in threats and intimidation, when you provoke others to violence, we’re talking about something different, and that’s never been constitutionally protected.

HEFFNER: Is that because of misinterpretations of the constitution itself, or is it because of behavior that is not being explicitly condemned, or sufficiently condemned?

DYER: Well, I certainly think in, and I said this earlier, that we do have to condemn what we see as evil and false and dangerous and, and call it what it is. There’s been a, a problem, I think on campuses generally, where we often will trot out these values that we hold, as a campus. And so we’ll talk about some value that we have, but we’ve lost the moral language, I think to, to criticize speech for, for being evil, for being dangerous, for being assaultive of persons. On the other hand, and I’m coming back now to, to the actual legal questions. Should the speech be, um, legally protected, and I’d say, if it’s peaceful, yes. When the speech is no longer peaceful, that’s when it’s no longer constitutionally protected speech. And we have to have some criteria to be able to judge when it’s no longer peaceful. But certainly threatening another person, encouraging others to act out in violence against another person, that, that has never been part of what we consider to be constitutionally protected speech.

HEFFNER: Well there was a story recently in the New York Times about how some of these propagandists have hijacked YouTube, so the problem is not specific, although we did explore, with Nick Monaco bots, specifically on Twitter it’s not specific to Twitter. It’s YouTube as well. I was thinking, as you were speaking, of info-wars. What it the design of that speech? It’s not peaceful. The title, whether it’s acting or real life, or impersonating crises, or fabricating crises, there is really not a yearning for peaceful speech. Give us hope, Justin.

DYER: I think that the students that I interact with, the colleagues that I interact with, a lot of the people day to day, if you sit down one on one with somebody, it really is possible to have a serious conversation, to not agree with each other at the end of the day, but to understand better where each one comes from, to disagree well, as we like to say. And I think that really is possible, and people can do that. The real challenge, potentially for us, I think in the modern era, has to do with all these technologies that you’re talking about. What does that do to our public discourse? We saw an op-ed piece the other day that talked about smartphones as our handheld hate machines. And we, we do have a, I think a way in which the social media becomes anti-social media, the, the national media organizations become very partisan and polarizing. And, and that becomes a challenge. I don’t know that there’s any legal solution. I wouldn’t advocate a legal solution to this. But we do have to develop a better culture together, as a people.

HEFFNER: What about a constitutional solution. I don’t mean a convention but I mean, when we had Neal Katyal here, who has argued before the Supreme Court numerous times, he had recently authored an op-ed on constitutional consensus and how, in a certain set of cases, there was more consensus that the court was arriving at, and yet in these recent sessions, that was a few years ago, they seemed to be betraying the promise that they all have, they all say, individually, privately, the justices, that they want more, seven to two or six to three decisions. Is there any template through which you think the court can uh, aspire to, to better, to model decisions that are not going to be so divisive?

DYER: Well I think there could be a way that the court is more deferential to, to popular majorities. And I know that’s difficult because it, every single case is going to be a different case, and you’re gonna talk about different issues, particularly with rights claims. The court has the, a counter majoritarian function, where they’re protecting minorities in rights against a majority. Uh, but there, there might be some wisdom to the court being more deferential to what legislators are doing, to what popular majorities are doing. There might be some wisdom to being deferential to states in the federal system. If we’re worried, as you began the discussion with, trends at the national level, in terms of concentration of power and the use of power at the national level, there might be wisdom in the federal system.

There might be wisdom in deferring to the authority of states on some of these issues but it’s, it’s a thicket, and you get into each one of these things individually, and it’s gonna be challenging and, and difficult. But, thinking about the constitutional consensus question, do we as a people have anything like a constitutional consensus. And I think in some sense we, we, because we’re so agreed on some fundamental things, we don’t even think about it anymore, the fact that we are agreed on them. So if I stood up in, in a classroom and I asked the students to raise their hands if they thought that we should have a kingship, or if we should dissolve the national legislature, or if we should have a national church, nobody would raise their hands.

We do have a consensus on some of those fundamentals, in terms of constitutions. But it’s really on the divisive, often right’s claim kinds of questions, often the flash button uh, cultural issues that we have the, the most divisive responses from people on. And the Supreme Court is right in the middle of all those issues.

HEFFNER: But do you think that, of, among those not enrolled in your classes or your university the answers might be drastically different. In some surveys they have proven different.

DYER: Yeah, they might be. So, civic knowledge is something that we have to work on, as a country. And I don’t know that the answers would be different because people formed hard opinions on these questions. It’s that they’re not even aware that the questions exist, that if you ask people, just civic surveys about the three branches of government, about the nation versus the state, about who are representatives are, about who the President is, a shocking number of people don’t have answers to those questions. And if we as a people want to continue this experiment in self-government, we have to be engaged, and thoughtfully engaged in this process.

HEFFNER: You said before, a possible prescription is deference to states or localities and that, the picture of government overreach can further drive that distrust. And if the judicial branch is not honoring the will of the people in Missouri or Montana or wherever, that can precipitate conflict or crisis. Beyond that, Justin, do we have to accept the war between the strict constructionists and the living constitutionalists, some of them who consider themselves also textualists? But, I, I’m just thinking in my mind about American history as a point-counterpoint, whether it’s the Federal Bank or the civil war, but it seems like, uh, in our arsenal of, of capacity to deliberate, there are some significant limitations. If we had just one Lincoln-Douglas exchange on reproductive rights, abortion, affirmative action, maybe these hot button issues would cool down. No?

DYER: I doubt they would cool down, but I think the fact that you highlight those issues in particular, I think gets to something when we’re talking about the constitution. So we are divided. We have different approaches to constitutional interpretation. As you mentioned, there are strict constructionists, originalists, living constitutionalists. Some of these categories blend in all sorts of different ways when people are talking about this. But two points about that, one is that those categories have existed from the beginning. The founders themselves divided over issues of constitutional interpretation in really profound ways that was really, really divisive as they’re having their own debates about constitutional interpretation. And then second, we’re actually not that divided on most issues of constitutional interpretation. And what I mean by that is, if you read the constitution, it lays out our political institutions. We know the way that we’re gonna have a President, the way that we’re gonna elect our president.

We’ve had a, a peaceful transition of power, every presidential election. And that’s not a small deal. I mean that’s, that’s something that’s extremely important. On the other hand, the issues that you’re talking about are almost entirely 14th Amendment issues. And the 14th Amendment is protecting life, liberty, and property for individuals against deprivation by state governments. Because of that, the Supreme Court has gotten into hugely expansive areas, interpretations of what it actually means to have life or have liberty taken from somebody. And those are our hot button cultural issues. Those, I think, often are what law professors spend their days writing about when they’re doing constitutional interpretation. And I don’t know what a, than an extended Lincoln-Douglas debate is gonna solve that issue for us, anymore than it solved the issue of slavery for Lincoln and Douglas.

HEFFNER: Justin thanks so much for being here today.

DYER: Thanks for having me.

HEFFNER: And thanks to you in the audience. I hope you join us again next time, for a thoughtful excursion into the world of idea. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online, or to access over 1,500 other interviews. And do check us out on Twitter and Facebook, @OpenMindTV for updates on future programing.