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.
I think it's a generational 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 one a
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 from 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,
claming 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 thought,
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 ideas.
Until then, keep an open mind.
Please visit The Open Mind website at
Thirteen.org/OpenMind to view this program online,
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