We the Students and Faculty, in Order to…

Appointing a First Amendment scholar as president of a college or university makes intuitive sense. A university should practice free thought and open exchange of ideas and First Amendment scholars generally like and defend those things.

True, it doesn’t always go smoothly.

Exactly how much freedom of speech to grant on campus, and to whom, can stir heated debates. President Lee Bollinger of Columbia University, a leading First Amendment scholar, got the Full Monty of abuse and protest when he defended an invite to Mahmoud Ahmadinejad to speak at Columbia while also going mano a mano with the Iranian president in a memorable encounter.

But all publicity is good publicity, no?

Last July, Furman University emulated Columbia’s wisdom by tapping First Amendment scholar Rodney Smolla as its 11th president. It’s not known yet whether Smolla has extended an invitation to Muammar el-Qaddafi—these First Amendment scholars can be ruthlessly competitive. Regardless, anyone who has taught Smolla’s excellent Free Speech in an Open Society knows that the former dean at Washington & Lee School of Law understands constitutional free-speech law backwards and forwards and ranks as one of the clearest expositors of its deepest motivations, values, and tensions. Smolla has also ventured, while building his impressive academic career, into the First Amendment trenches, pressuring The New York Times to clear the name of a lobbyist it suggested had an affair with Sen. John McCain (suing the paper helped), defending a Ku Klux Klansman’s right to burn a cross, and winning a judgment against the publisher of a how-to manual that aided a killer who murdered three people.

Well, what a nervy way he’s chosen to alight on his new campus. The Constitution Goes to College (New York University Press) at first sounds as if it’s the playful memoir of a First Amendment star who’s cast his future lot with academic administration, or a standard account of free-expression cases at colleges and universities. But the subtitle indicates its bolder theoretical spine: Five Constitutional Ideas That Have Shaped the American University.

Smolla’s lively core idea is that a college or university very much resembles a democracy: It’s “part corporation and part federal republic.” He believes comparing the way America balances constitutional values, and how universities embed “academic freedom” within their own version of “ordered liberty,” can illuminate both realms.

Riffing off Tocqueville’s famous claim that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,” Smolla announces that there is “scarcely any constitutional question that arises in the United States that does not devolve, sooner or later, into a campus question.” He means that in a broad sense. He did not write his book to explain that, say,” time, place and manner” constraints—the line of First Amendment decisions that holds you can’t blare your complaints about the mayor on her front lawn through a bullhorn at 3 a.m.—applies on the college president’s lawn as well.

“My claim,” Smolla explains, “is that a handful of large `American constitutional ideas’ have heavily shaped the `idea of the American university.’” Those five ideas are: “1) the debate over whether we have a `living Constitution,’; 2) the division between the public and private sphere; 3) the distinction between `rights’ and `privileges’; 4) the notion of `ordered liberty’; and 5) competing conceptions of equality.”

In Smolla’s view, their influence has been superb.  As he sees it, “The idea of the university that was imported from Europe married with the idea of robust protection of civil liberties that is at the soul of the American constitutional unconscious.” The result fixed “the ideal of academic freedom at the center of the value system” of the modern American university. Freedom to learn and freedom to teach came together with the freedoms of the Constitution.

Smolla’s general method is to analyze Supreme Court jurisprudence for its impact on our conception of what a college or university should be. So, for instance, in scrutinizing “academic freedom”—a phrase that does not appear in the Constitution—he argues that it has been better for colleges and universities that the court sees academic freedom as arising under broad principles of free expression, rather than endorsing it (as the University of Pennsylvania once sought to establish in a landmark case) as a free-standing constitutional right under the Ninth Amendment. Smolla indeed makes a good case for the Constitution as a welcome hovering presence over academic life.

At this point, you’ve probably caught on to something else that’s shocking, just shocking! The Constitution Goes to College is a POSITIVE book about today’s American university, a.k.a. “The Corporate University,” a.k.a. “Indoctrination U.,” a.k.a. “The Besmirched Ivory Tower,” etc. Well, David Horowitz, Stanley Aronowitz, and the rest of you naysayers—eat your hearts out. President Smolla, like Hubert Humphrey before him, is a happy warrior.

‘My view of the brilliance of the American Constitution,” he asserts, “and my view of the brilliance of American higher education, is grounded in a positive and optimistic belief in the good that can come from the creative and thoughtful resolution of poetic tensions.”

Short of appointing upbeat psychologist Martin Seligman as president, Furman could not have done better. Of course, President Smolla will have only himself to blame should the good citizens of the People’s Republic of Furman, for reasons of their own, decide to test his vision down the line by impeaching him.—Carlin Romano, Critic-at-Large

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