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Web Exclusives: PawPlus Who’s
Afraid of Senator Byrd? By Stanley N. Katz
Editor’s note: The following is the complete text of the Constitution Day lecture given by Professor Stanley N. Katz Sept. 17, 2007, at the Woodrow Wilson School. A half-page ad in The New York Times Book Review a few weeks ago announced that the Annenberg Foundation Trust’s Annenberg Classroom could help to make Constitution Day, Sept. 17, “easy”: Constitution Day “shaped our HISTORY, it charts our Future.” The foundation asserted that “the U.S. Constitution protects the wellbeing of our country and ensures our freedoms.Yet many Americans know little about it. That’s why Congressed established Constitution Day – a time to teach future generations about the foundations of our democracy.” I wonder how many of you have wondered why you are sitting in Dodds Auditorium on a lovely September afternoon, when you could otherwise be walking along the towpath or at least heading for Firestone? Many years ago when I was finishing my dissertation, a grad school friend was summoned to a job interview at UCLA, and to the astonishment of the history department committee preparing to interrogate him, he spoke first at the meeting, asking, “You gentlemen must have wondered why I have brought you together today?” Despite his chutzpah, he got the job. But the answer to the analogous question today is “Senator Byrd.” We would not be here today if the distinguished senator (D-W.Va.) had not had the chutzpah to write into law on Dec. 10, 2003, the requirement that any and all educational institutions that receive federal monies must offer students an instructional program on the U.S. Constitution each 17 September. Who’s afraid of Sen. Byrd? Well, I am not, but here you are being educated by me about the U.S. Constitution – though perhaps not exactly as the good senator would have wished. I confess that the first thought that crossed my mind when I read reports of the legislation was that the federal government had no right to determine the curriculum of Princeton University (or any other institution of higher education). But on reflection I have concluded that while we should go to the barricades in the name of academic freedom if the feds were mandating a requirement that every undergraduate take a course in constitutional law or history, requiring us to hold a once-a-year educational experience of our own choosing seems sufficiently permissive and respectful of institutional educational prerogatives. And in any case, the constitutional status of academic freedom is not so clear. For example, as part of its get-tough-on-Cuba policy, the Bush administration recently issued regulations restricting the travel of U.S. undergraduate students to Cuba for short courses (of the sort that Princeton in Cuba used to provide).The regulations were challenged in the name of First Amendment-based academic freedom. Last July 30 Judge Huvelle of the federal District Court in the District of Columbia upheld the regulations on the grounds that what she referred to as “the so-called academic freedom doctrine” applies only to government regulations that control the content of academic speech – and travel restrictions are a different matter. More importantly, of course, the federal government has been in the higher education business at least since the passage of the Northwest Ordinance setting aside public lands for the support of public education in 1787 and the Morrill Act that established our magnificent land grant college system in 1862. Following in the Jeffersonian republican tradition, mid-19th century Republicans agreed with one of their House members from Illinois, who said during the Morrill Bill debate: “What is the true, genuine spirit of our institutions: Upon what are they founded? The two great pillars of our American Republic, upon which it rests, are universal liberty and universal education.” These days we think of the federal government’s role in higher education as primarily the provider of student financial aid and the funding of scientific research, but from the start many Americans have accepted the conceptual link between education and democratic citizenship. Sen. Byrd is on safe ground in this respect. I want to suggest to you this afternoon that while the constitutional basis for the Byrd legislation is problematic, that is not nearly so troubling as what the legislation implies both about how we think about the U.S. Constitution and how we think about the role of history teaching in undergraduate education. That is, I am less concerned about the role of the federal government in mandating teaching requirements in higher education than I am about the teaching of U.S. history in particular. Therein hangs a very interesting and consequential tale.
Of course Sen. Byrd is not alone in his veneration for the Constitution, which he famously and invariably carries with him at all times – as do I. [Flourish Constitution] When beginning to write this lecture, I was struck by a passage in a Sept. 1 New York Times article about Condoleezza Rice’s concern for her historical legacy. She told the reporter that she had recently visited the National Archives for the first time (about time, I should think), and spent a morning viewing the Emancipation Proclamation, the Declaration of Independence, and (her rank ordering is interesting, friends) the Constitution. The documents, she told the Times, gave her a new perspective: “People are still trying to resolve those legacies . . . [so] I’m not going to worry about my legacy.” These are wise words. Secretary Rice seems to suggest that the meaning of historic documents is not self-evident, a point that seems to have escaped the Annenberg Foundation, Sen. Byrd, and others I shall soon mention. This is not a matter of politics. Many, perhaps most, commentators on public affairs have grand and fixed notions of our Founding documents, but they attach very different significances to the documents and to the Founding Era, some seeming to tie themselves to the past, others using it for present purposes. The very able dean of this school has recently published a book entitled The Idea That Is America, in which she makes a point about the relationship between American ideas and historical context:
Constitutional law scholars will recognize in this formulation the distinction between “originalists” and advocates of a “living Constitution,” but for the moment I simply want to remind us of the distinction between historical documents and present political realities. The question is how we are connected to our constitutional past. What claims, if any, does it have on us as citizens? Americans have been declaiming on the subject for centuries, perhaps stimulated by what Benjamin Franklin said at the Constitutional Convention in Philadelphia on Sept. 17, 1787 (and now the secret is out as to why we are here on this particular date) – the day on which the Framers actually signed the Constitution of the United States. Franklin, the new country’s elder statesman, wrote out remarks for James Wilson to read to the Framers two hundred and twenty years ago today. It is a wonderful speech, in which Franklin began by saying that “there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them,” words which tell us something important about the multiple ways in which the Framers thought about what they had conceived. He went on to say that he agreed to the Constitution “with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered … I doubt too whether any other Convention we can obtain may be able to make a better Constitution … It therefore astonishes me . . . to find this system approaching so near to perfection as it does . . .” “Near to perfection” is perhaps the conception we need to hold on to on Constitution Day. “Thus,” Franklin proceeded, “I consent … to this Constitution because I expect no better, and because I am not sure, that it is not the best.” Many of you will remember that after the Framers filed by the front of the Hall to sign the parchment, Madison reported that Franklin “looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun.” Franklin noted that he had often wondered whether the sun on the chair was rising or falling, “But now,” he said, “at length I have the happiness to know that it is a rising and not a setting sun.” What a happy story for Constitution Day. But of course Franklin could only be sure that the sun was rising in September, 1787. What do you suppose he would say about the sun’s inclination today? But of course neither Ben Franklin nor George Washington ever suggested that we celebrate Sept. 17 as a holiday in honor of the constitution. So far as I can tell, the events that led us to the designation of a Constitution Day began with the congressional designation of another date the third Sunday in May, as “Citizenship Day and New Citizens Day” in 1940, on the eve of the war.
The INS was given the responsibility for coordinating with local communities and providing suggestions for developing ceremonies. In 1944 Judge Learned Hand gave the Day’s ceremonial talk, and linked its observance to the Constitution, albeit negatively: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, and no court can save it; no constitution, no law, no court can even do much to help it …” But for Hand this was not just the work of man: “The spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten, that there may be a kingdom where the least shall be heard and considered side by side with the greatest.” There matters rested until 1952, when Congress designated Sept.17 as Citizenship Day, and in 1956 proclaimed the week beginning Sept. 17 as Constitution Week. The Byrd amendment of December 2004 actually changed the name “Constitution Day” to “Constitution Day and Citizenship Day.” Since then, as I have already told you, educational institutions receiving federal funds are obligated by federal law, not simply encouraged, formally to celebrate the Day. The annual Constitution Day proclamations of Presidents Clinton and George W. Bush indicate the range of available meanings of the observance. In 1995 Clinton referred to the Constitution as “the greatest expression of our national identity.” He noted that:
But when Bush proclaimed this week on Aug. 22, he said that “we celebrate the anniversary of our Nation’s Constitution and honor the Framers who created the landmark document that continues to guide our Nation.”
I don’t want to read too much into words written by those Executive Office functionaries who also write the proclamations honoring National Pickle-Eaters Day, but presumably they are trying to reflect the views of their bosses. Put simply, Bill Clinton saw the Constitution as an originally flawed document, the product of change produced by more than two centuries of political struggle, and George Bush sees it as the embodiment of enduring values and the key to understanding American history. My argument is that it is this view that Sen. Byrd and others are promoting in designating today as Constitution Day and in seeking to reform the teaching of American history accordingly. I find this troubling, and my task today is to explain why. Let’s start by looking at Sen. Byrd’s rationale for the Constitution Day requirement. He gave the obligatory address himself at Shepherd University in West Virginia on Sept. 16, 2005, the first observance in his home state.“Not a day has passed in the history of this great republic in which the Constitution has not been important,” he assured the audience, “[a]nd certainly not today, as religiously inspired terrorist groups strike from wild dark places at the way of life that our Constitution guarantees for us.” This is heady stuff. Is it a “way of life” that the Constitution “guarantees” us? Let’s forget for the moment the “wild, dark places,” or, for that matter, “the children of light and the children of darkness.” “The anniversary of the signing of the Constitution is,” he went on:
Moreover,
It is nice to know that the Constitution is not “legalistic gobbledygook,” though not all of us find its language so transparent as Byrd does, but what counts for him is that an 18th-century formulation is a sure guide to understanding 21st-century events. In his 2006 Constitution Day message Senator Byrd reminded us that he carries a copy of the document with him “wherever I go,” and asked, “but what about you? What do you know about the Constitution? How much of it do you carry around with you? Why should you want to know about your Constitution?” His answer was to refer to Ben Franklin, who reminded the Framers that they had created a “Republic, if you can keep it.” And adhering to the structures and values of the Constitution is the way to preserve the republic.
Education is, then, for Byrd the key to the preservation of the republic, historical training is the key to education, and understanding of the Founding Era is the key to United States history.
My concern with what Byrd has done is with the political and ideological spin that is put upon the Constitution on its Day. I believe that the most serious problem is with the sanctification and glorification of the Constitution qua constitution, that is, with the veneration of a parchment signed in 1787 in and of itself. This is what our former colleague Walter Murphy, the immediate past McCormick Professor of Jurisprudence at Princeton, called constitutionism:
It has, alas, been all too common in our history for those who want to lock in old constitutional values and interpretations to promote constitutionism. The most egregious recent example of this phenomenon was then-Chief Justice Warren Burger’s management of the Bicentennial of the Constitution in 1987. Twenty years ago today The New York Times reported, “President Reagan is scheduled to speak outside Independence Hall. And at 4 P.M., the moment of the Constitution’s signing, former Chief Justice Warren Burger is to ring a reproduction of the Liberty Bell, signaling other bells to chime around the country and at United States installations around the world.” When the bells stopped ringing and he had his chance to speak, Burger intoned:
“Keeping faith with the vision of the Founders” had a special meaning for Chief Justice Burger, but for some it represents a sort of nostalgic patriotism and filiopietism. And Associate Justice Thurgood Marshall was quick to point this out in a speech shortly after the Bicentennial Commission got down to work:
Marshall here says, what I believe, that what we should revere in this democratic nation is not a document embodying the ideals of two centuries ago, but rather that greatest of American intellectual and political contributions to the world – the idea of constitutionalism. Just as Bill Clinton argued in his Constitution Day proclamation in 1995, change is the friend, not the enemy, of constitutionalism. True constitutionalism, as I have argued many times before, is the product of political struggle within particular societies, not a set of universal values or prescribable institutions. But now I want to move beyond Byrd’s interpretation of the Constitution, and his intentions for Constitution Day. I’d like to deal with the implications of Constitution Day for the teaching of history, for Sen. Byrd is not simply concerned with respect for the Constitution. He is himself the author of a number of speeches on the history of the United States Senate, later collected into four volumes, and a deep believer that the nation’s future depends upon our success in educating youngsters about the history of the country. To that end, he successfully introduced legislation in 2000 to create what he called the “Teaching American History” initiative. His original proposal was to appropriate $50 million annually in grants to schools that teach American history as a separate subject within their curricula:
A year later, Byrd explained that he hoped the TAH initiative would provide “incentives to help spur a return to the teaching of traditional American history … Our failure to insist that the words and actions of our forefathers be handed down from generation to generation will ultimately mean a failure to perpetuate this wonderful, glorious experiment in representative democracy.” The core of Byrd’s intention is to return to what he thinks of as traditional American history. “[W]e need good history books and good teachers so that the boys and girls today will find their heroes among the early Americans who built this country.” Good history is the story of Byrd’s childhood heroes. The problem for Byrd is not just that schoolchildren are not being taught enough American history, but that they are not being taught the right kind of history. And his initiative has flourished. In 2002 TAH was incorporated into the No Child Left Behind Act (as part of the teacher-quality section of the Act); even in tough budget times over the past five years it has consistently been funded at more than $100 million a year – about two-thirds of what the National Endowment for the Humanities and the National Endowment for the Arts each receives annually. Considering that in the entire history of the United States prior to 2000 there had never been dedicated funding for the teaching of American history in the schools, this is a staggering national investment in U.S.history. How did it come about? I do not have time today for details, but essentially this is the story of an idea that appealed to a great many politicians for very different reasons. One set of reasons has to do with the so-called “culture wars” of the late 1980s and early 1990s, in which political conservatives made much of the alleged ignorance of American schoolchildren as a cause of cultural decline. Another set had to do with the efforts of some university historians to try to reclaim the teaching of history from the dominant social studies curriculum in the public schools. Both sets were stimulated by the contentious survey conducted by Diane Ravitch and Chester Finn, published in 1988 as What Do Our 17-Year-Olds Know?, with a forward by NEH Chairwoman Lynne V. Cheney, who made historical truth one of her mantras. In short, the argument of Ravitch and Finn was that schoolchildren did not know the facts of American history, a finding also confirmed in a survey report by the American Council of Trustees and Alumni in 2000 entitled “Losing America’s Memory: Historical Illiteracy in the 21st Century.” Like the Ravitch-Finn survey, the ACTA report focused on ignorance of commonplace historical facts, reporting that 81 percent of those surveyed “could not identify Valley Forge, passages from the Gettysburg Address, or the principles of the U.S. Constitution.” ACTA also reported that none of “the nation’s top colleges and universities require students to study American history” (yes, that still includes Old Nassau) and “only 10 percent require students to study history at all” (not us either). Congress itself jumped on the “historical ignorance” bandwagon, and in the summer of 2000 Sen. Joseph Lieberman (who along with Lynne Cheney had co-founded ACTA) and others introduced a bipartisan resolution “Expressing the Sense of Congress Regarding the Importance and Value of Education in United States History.” The resolution decried “the historical illiteracy of America’s college and university graduates” and called upon higher education to respond by reviewing undergraduate curricula and promoting U.S. history requirements in order “to restore the vitality of America’s civic memory.” Sen. Lamar Alexander (occasionally in tandem with Sen. Ted Kennedy) has also promoted the study of American history – in April 2003, Alexander held a hearing on his “American History and Civics Education Act” – please note the connection between history and civics. Alexander commented that “when we are asking our young men and women to fight to defend our values, we need to do a better job of teaching just what those values are.” For Alexander and Lieberman, history is about teaching facts and values, with the facts intended to support particular values, though the evidence they produce of lack of historical knowledge is primarily about ignorance of specific individuals (“heroes,” mostly), events (especially related to the Founding), and places (related to both of the aforesaid). The Alexander bill, which first passed the Senate in 2003, proposes to create summer residential academies for American history teachers and students, modeled on the program that Alexander sponsored as governor of Tennessee. Alexander intends that the program would “put the teaching of American history and civics back in its rightful place in our schools so that our children can grow up learning what it means to be an American.”
This, by the way, is a riff on the more famous statement of Yogi Berra that “if you don’t know where you are going, you might not get there.” In 2005 Sens. Alexander and Kennedy introduced new legislation to improve American history and civics scores on the National Assessment of Education Progress examination. As I will argue in conclusion, this is a normative and prescriptive view of the uses of history, and I think that both historians and political liberals ought to be wary of it. I could give you a great many more examples. The most important would be the controversy over the adoption of national standards for the teaching of American history, a dispute fomented by NEH Chairwoman Cheney to great political effect. I think many of you are familiar with that sorry episode, but you may be less aware that NEH is still in the business of using American history for similar purposes, and I will conclude with a brief discussion of what the current chairman, Bruce Cole, has been doing to promote the American heritage. I have the comfort here in knowing that I am not the only one to have noticed Cole’s appropriate of American history. In May of 2007 Judith Dobrzynski of The Wall Street Journal wrote an article on Cole entitled “This NEH Chairman is Our Official History Scold.” Cole told the reporter that history was not like other aspects of culture: “It’s essential.” And he quoted Ronald Reagan as saying that “this country comes from well-informed patriotism; it’s that love of country, that love of place, that’s necessary for any country’s survival. You can call them myths if you want, but unless we have them, we don’t have anything.” Cole himself contended that “history is a safeguard for our democracy. … It’s part of our national security.” Relevant to an American Studies lecture, the chairman also opined that “… I do believe in American exceptionalism. … This is the greatest country that has ever existed.” Under Cole’s leadership, and with the explicit endorsement of President George W. Bush, the signature program of the NEH has become “We the People” (note the Constitutional reference, please), “an initiative to explore significant events and themes in our nation’s history, and to share these lessons (note the word, please) with all Americans.” At the Rose Garden ceremony at which the president announced the program, Mr. Cole took the podium to comment that “studies (he meant Ravitch-Finn and ACTA) have shown that Americans of all ages have a dangerously poor understanding of American history and culture. … The president has identified this lack of understanding as a serious problem and has asked NEH to help combat (note the verb) it.” We the People is designed (1) to call for applications for projects designed to explore significant events and themes in our nation’s history, (2) to sponsor an annual “Heroes of History” lecture by a scholar “on an individual whose heroism has helped to protect (note the verb) America, and (3) to sponsor an annual “Ideal of America” essay contest for high school juniors. Cole concluded the announcement ceremony with a reference that must have pleased the Chief Executive:
And he pressed the national-security rationale for the teaching of American history and culture:
We the People continues to be the signature program of Cole’s NEH, although compared to the sums allocated for Teaching American History, WTP is a financially modest program. The Heroes of History lectures have thus far been given three times by fairly distinguished figures, beginning with Robert Remini reflecting on “Ordinary Heroes: Founders of Our Republic,” and by subsequent lecturers extolling Abraham Lincoln and George Marshall (“An American for all Seasons”). The essay contest also continues, with an assigned topic each year on “the principles that define and unite our nation.” In 2003 NEH also launched a WTP reading list on “courage” with Cole and Lynne Cheney (yes, she is still involved) announcing the establishment of a “We the People Bookshelf” – “By reading these books, young readers can gain greater understanding of how people from all walks of life – facing challenges large and small – can find strength to do what is right.” It is also noteworthy that in September 2002, NEH announced that it would convene an annual conference on “civics education, the state of historical knowledge, and ways to enhance the teaching of American history,” leading to a White House Forum on the subject in 2003. In sum, since at least 2000 a variety of politicians from both parties have proposed programs to reinvigorate the teaching of United States history and (closely linked to it in purpose) civics, on the theory that history education is a prerequisite for democratic education. The George W. Bush National Endowment for the Humanities and the Department of Education have administered such programs. Of course, there is nothing wrong with striving to improve the teaching of history and civics. But the agenda behind these particular programs is ideological and didactic. It is premised on the notions that The Founders Knew Best and that We Ought Still Be Governed by the Original Principles, and these are both historically and politically debatable at best and pernicious at worst. Not just historians but all educators should resist the notion that students of all ages should be taught historical political mythology. But this is not to argue that there is not a nexus between democracy and education. Quite the contrary. My personal hero in this regard (alas, not a Founder, but at least a Dead White Male), John Dewey, put it eloquently in 1916 (when our democracy was anything but secure):
It seems to me that some such assumption should properly be the basis for liberal undergraduate education. We ought not to be about telling our students what is right (though any teacher worth her salt will have strong preferences as to right and wrong in her own domain). The aim of liberal education is to challenge students to make their own informed judgments. We, along with Dewey, want our students to be “educated to personal initiative and adaptability.” More specifically for history teachers, the goal is not facticity (which might be compared to constitutionism). The historian aims to train his students in historical thinking – to be able to acquire the relevant data (facts among them) and then to be able to make reasoned judgments and draw conclusions from them. This is the sort of thinking that is not so easily assessed, unlike the simple-minded information survey that led to the dismal conclusions of What Do Our 17-Year-Olds Know? or the even more tawdry ACTA survey. It would be nice if all of my students knew what happened on Sept. 17, 1787, in Philadelphia, but it would be much nicer if they had an informed interpretation of what the long-term significance of the signing of the federal Constitution might be. My friend and history department colleague Theodore Rabb put the point well in a June essay on history teaching in the schools in The Chronicle of Higher Education:
History, especially U.S. history, also has a large role to play in our university classrooms, in training students in historical thinking, and even in teaching them how democracy works. But this is not in my view the special obligation of historians. Rather, it is an integral part of liberal education. Harry Lewis, the distinguished former dean at Harvard, wrote in the Chronicle just two weeks ago that “colleges can’t say that civic ignorance is just the problem of high schools. Honoring the responsibilities of citizenship in a democracy is part of the moral obligation universities assume in exchange for the vast freedoms … they enjoy.”
I think Lewis has it just right. Put another way, what Lewis (and I) would advocate is not filiopietistic patriotism, of the NEH variety, but rather constitutional patriotism, which is quite a different matter. As Jürgen Habermas has put it:
Notice that Habermas asks us to locate where we are constitutionally in relation both to our own history and to the situation of other republican polities. This is a sensible and responsible use of constitutional history. It appeals to me, since I have devoted 50 years of teaching to attempting something like what Habermas suggests. But, as you have heard, I am adamantly opposed to the calls for the normative teaching of history and the prescriptive use of education. My challenge to you, in the exercise of Princeton University’s obligation to provide an “instructional program” for our students on this day, is simply to think about what the Constitution means today and has meant historically to this country. This is what my UCLA colleague Joyce Appleby has done in an op ed entitled “Let’s Do Something Constitutional on Constitution Day,” urging the Congress to act on its constitutionally mandated exclusive power to declare war. There’s a practical suggestion! If you should happen to agree with me that some of those who have urged us to venerate the document and its early history are now undermining the vigor and integrity of our constitutional tradition, I would be delighted. If not, I would love to engage you on the topic. Long live the Constitution of the United States. And long live
Senator Robert Byrd!
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