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The Constitution Goes to College

The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University

Rodney A. Smolla
Copyright Date: 2011
Published by: NYU Press
Pages: 239
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  • Book Info
    The Constitution Goes to College
    Book Description:

    American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on our campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values. In The Constitution Goes to College, Rodney A. Smolla - a former dean and current university president who is an expert on the First Amendment - deftly uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, Smolla demonstrates how five key constitutional ideas - the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality - are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life. Ultimately, Smolla compellingly demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.

    eISBN: 978-0-8147-8856-1
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-x)
  4. 1 Five Constitutional Ideas That Have Influenced the Identity of American Universities
    (pp. 1-16)

    Alexis de Tocqueville, in his classic nineteenth-century study of the United States,Democracy in America, observed that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”¹ What de Tocqueville aptly observed arose from the special role of law and lawyers in American society, particularly the special role of constitutional law and constitutional lawyers. This book is an update on de Tocqueville, with a twist. The argument advanced here is that there is scarcely any constitutional question that arises in the United States that does not devolve, sooner or later,...

  5. 2 Academic Freedom and the Living Constitution
    (pp. 17-37)

    In interpreting the Constitution, a natural (but sometimes overlooked) starting placeisthe Constitution. If “academic freedom” is to be understood as a constitutional right, then it is a right that most plausibly fits within the meaning of the First Amendment. Indeed, Justice Lewis Powell’s statement inRegents of the University of California v. Bakkemight be read as an oblique endorsement of the notion that “academic freedom” should be treated as such an “implied” First Amendment right. To dissect this argument, let us look to the actual text of the First Amendment, inserting numbers to keep track of the...

  6. 3 The Public and the Private Sphere
    (pp. 38-70)

    Daniel Webster, arguing before the Supreme Court of the United States inTrustees of Dartmouth College v. Woodward(1819)¹ on behalf of his beloved alma mater, Dartmouth, brought tears to the eyes of Chief Justice John Marshall as he proclaimed that Dartmouth was “a small college, but there are some who love it.”

    The Supreme Court’s decision in what is popularly known as theDartmouth College Caseis usually studied by American lawyers as an early nineteenth-century iteration on contracts and corporate law. But looking back at the Court’s 1819 decision through the prism of almost two centuries of development...

  7. 4 Rights and Privileges
    (pp. 71-93)

    One of the principal intellectual architects of the distinction between rights and privileges was Justice Oliver Wendell Holmes. In 1892, when he was still a state Supreme Court Justice on the Supreme Judicial Court of Massachusetts, Justice Holmes was faced with a case involving an Irish constable from New Bedford, Massachusetts, named John McAuliffe, who was fired for talking politics while walking his beat. McAuliffe argued that his dismissal violated the First Amendment. Justice Holmes disagreed. He tossed out McAuliffe’s free speech claim inMcAuliffe v. City of New Bedford(1892) with the gruff observation that “the petitioner may have...

  8. 5 Ordered Liberty
    (pp. 94-159)

    “Honey, I think the world is flat.” Thomas Friedman, author and columnist for theNew York Times, shared these words with his wife, and a book was born. InThe World is Flat,¹ Friedman argued persuasively that the story of the new century was not the terrorist attacks on the World Trade Center, not the wars in Afghanistan and Iraq, but the “flattening” of the earth—the exploding forces of globalization driven by changes in technology, business, and politics that have fueled the economies of India, China, and other nations, placing enormous stress on all our moral, social, political, and...

  9. 6 Competing Conceptions of Equality
    (pp. 160-185)

    When four members of the Duke University lacrosse team, all white students, were accused of raping an African American stripper hired by team members to perform at an off-campus party, Duke and the surrounding community in Durham, North Carolina, were swept into the vortex of a perfect storm. For months, national discourse over the Duke lacrosse team allegations were filled with sound and fury over universities allegedly hijacked by runaway athletic programs, seething racial and class divisions, and privilege. With many members of its faculty urging it on, Duke suspended the students and canceled the lacrosse season. The allegations were...

  10. 7 Conclusion
    (pp. 186-192)

    The1940 Statement of Principles on Academic Freedom and Tenure¹ provides an excellent vehicle for concluding this book’s exploration of the influence constitutional ideas have had on the identity of public and private American colleges and universities. The1940 Statementwas crafted by representatives of the American Association of University Professors, an organization dedicated to the interests of higher education faculty, and also by the Association of American Colleges, an association of universities and colleges led by college presidents and other senior administrators, representing the institutional interests of colleges and universities. The1940 Statement, which is a sort of labor-management...

  11. NOTES
    (pp. 193-220)
  12. INDEX
    (pp. 221-229)
    (pp. 230-230)