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2017 Missouri Summer Teachers Academy

The Bill of Rights' Enduring & Evolving Legacy

An annual tradition that we hope continues to grow each year, the Kinder Institute, in partnership with the Missouri Humanities Council, hosted the second Missouri Summer Teachers Academy in Columbia from June 12 – June 15, 2017. Along with an opening reception on the 12th and the lectures detailed below, participants, who came from Hamilton, MO, to Chesterfield and everywhere in between, attended daily breakout sessions with local educators and educational researches as well as June 13 and 14 dinner lectures with Missouri Public Defender Chelsea Mitchell and Haden & Haden criminal lawyer Brent Haden, respectively.

Day 1: June 13, 2017

 

9:00 – 10:15  “Libel and the First Amendment, from English Roots to the American Present,” University of Missouri Enoch H. Crowder Professor of Law Christina Wells

10:30 – 11:45 “Why Did the Anti-Federalists Want a Bill of Rights,” Sweet Briar College Assistant Professor of Government Nicholas Drummond

As Sweet Briar College Assistant Professor of Government (and former Kinder Postdoc) Nick Drummond noted in opening his June 13 seminar for the 2017 Missouri Summer Teachers Academy, to answer the question that the title of his talk poses, one needs to first look at the broader debates that raged during the Constitutional Convention, as they provide a philosophical backdrop for the particular back-and-forth between Federalists and Anti-Federalists concerning the need for a Bill of Rights. In fact, he added, one might do well to go back even one step further, to Shays’ Rebellion. The pre-Convention rising up of Western Massachusetts farmers against Boston political elites sparked anxiety among certain delegates regarding the levers of power falling into the hands of a majority uninterested in the common good, which in turn led Federalists to believe that an energetic national government might be necessary to quell perilous factionalism. What did the Federalists mean by ‘energetic,’ exactly? A government that would be empowered to interfere with the domestic policies of states. On the other side of the aisle, it was precisely this license for state-level meddling that drove the Anti-Federalists to view the Constitution, as it was presented in 1787, as a pathway to tyranny.

For New York Anti-Federalist judge Robert Yates, who published under the alias of “Brutus,” particularly concerning was the Constitution’s elastic “necessary and proper” clause, which he felt not only gave Congress unlimited power over the states but also opened up a way to abuse this power through coupling it with other clauses contained in the text: the commerce clause, for example, or taxation, spending, or supremacy. Compounding this potential problem, he argued, was Federalists’ practical and philosophical support for a large republic with a strong central government. As he famously hypothesized in “Federalist 10,” Madison believed that the sociocultural diversity inherent to large republics might prove the salvation of the new nation by providing a natural check on the nefarious life of factions. Following Montesquieu’s critique of large republics, Yates countered that a large republic was unsustainable and would inevitably descend into plutocracy and, eventually, tyranny. Why? For one, representation in a large republic would be imperfect, sequestering power in the hands of the few and thus creating a federal government that was ignorant, if not indifferent, to the interests of many pockets of society. Secondly, the difficulty of monitoring an energetic national government at a distance would, he feared, lead to iniquitous professionalism in Washington.

Circling back to where his talk began, Prof. Drummond concluded by showing how this fear of a central government with excessive power and license was the driving force behind Anti-Federalists’ call for a Bill of Rights. For their part, Federalists argued that such an annex to the Constitution wasn’t necessary, since the powers of the national government had been clearly and carefully enumerated and, by virtue of this, were strictly limited. A Bill of Rights, they added, might actually undermine its own purpose by supporting the skewed perspective that the government’s powers were unlimited so long as the Bill of Rights remained unviolated. The Anti-Federalists emphatically rejected this line of argumentation on both a textual and philosophical level. In regard to the former, they pointed out that the Constitution already contained safeguards to prevent certain rights violation (suspension of habeas corpus, subjection to ex post facto laws), a fact that betrayed a collective recognition of the central government’s potential to extend its authority to include powers beyond those that it had been expressly granted. As for the latter, Agrippa, reiterating a central tenet of Anti-Federalist thought, warned that, without a sacred barrier, the rights of a minority would be trampled by a tyrannical majority, given the way in which constitutional ambiguity promoted the kinds of corrosive ambition to which he and his compatriots believed humans were naturally given.

1:00 – 2:15  “Black Founders of the United States,” University of Missouri Assistant Professor of Education LaGarrett King

Day 2: June 14, 2017

 

9:00 – 10:15  “What Is Freedom of the Press,” University of West Florida Associate Professor of Government David Ramsey

10:30 – 11:45  “How the Bill of Rights Came to Be Applied Against the States,” MU Professor of Political Science and Kinder Institute Director Justin Dyer

1:00 – 2:15  “The Primacy of the 10th Amendment in the Jeffersonian Tradition,” Missouri Humanities Council Executive Director Dr. Steve Belko

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

—Amendment X, U.S. Constitution

Picking up on a discussion of the Alien and Sedition Acts from the 9:00 session on June 14, Missouri Humanities Council Executive Director Dr. Steve Belko used the controversial 1798 Acts as a springboard for examining the somewhat chameleonic legacy of the Tenth Amendment in American history and politics. Before entering the 1798 fray, though, Dr. Belko laid out the pre-history of the Amendment, tracing its origins back to the Articles of Confederation and then explaining how, during the ratification debates, Anti-Federalists championed it as an absolutely necessary safeguard against the federal government seizing excessive power over state affairs (or, alternately, as a necessary safeguard for the perpetuity of a confederated, versus a consolidated, republic). As for the Alien and Sedition Acts themselves, both Madison (in the “Virginia Resolution”) and Jefferson (in the “Kentucky Resolution”) invoked the language and spirit of the Tenth in declaring the Acts null on the grounds that the Constitution did not expressly “delegate to the United States” a power to limit free press or suspend due process.

Out of Madison and Jefferson’s rhetoric, “the Principles of ‘98” emerged as a battle cry of sorts for those claiming that the federal government had overstepped its delegated bounds. As Dr. Belko went on to show throughout the remainder of his talk, what is perhaps most interesting about subsequent petitions to “the Principles of ‘98” is what he termed their “shifting locus.” On one hand, he noted, we might understand this “shifting locus” in geographical terms. Around the time of the War of 1812, for example, it was New England Federalists, rather than Jeffersonian Virginians, invoking the Tenth Amendment in protest of, among other things, what they perceived as coercive, overreaching national economic policies. As Dr. Belko argued, we also see a trend beginning to form here, with those out of power using the Tenth as a means of obstructing the agendas of those who displaced them.

Continuing to follow the twists and turns of Tenth Amendment history, Dr. Belko then observed how, during the Jacksonian era, the locus expanded to encompass the nation itself and, in doing so, often pitted branches of government against one another. Specifically, he argued that “the Principles of ‘98” evolved into a partisan tool that pro-Jackson states could wield in support of—or to quash opposition to—their federal allies’ stances on contentious issues of the time (the Bank of the United States, internal improvements, etc.). In wrapping up, Dr. Belko noted how things reached a problematic peak in 1832, when Calhoun & Co.—using ‘null’ as a verb, rather than an adjective—unduly “pled the Tenth” in an attempt to free states from otherwise constitutional acts of legislation. What remained constant though, he concluded, was that the Tenth Amendment served as a historically complicated, important, and often self-promoting check on the central government that will continue to gymnastically rise to the surface of American politics so long as sectional and partisan interests remain in play.

Day 3: June 15, 2017

 

9:00 – 10:15 “We Are Not Children: College Students and Constitutional Rights,” University of Missouri Ph.D. Candidate in History Craig Forrest

To kick off the final day of the 2017 Teachers Academy, incoming Kinder Graduate Fellow in Political History Craig Forrest brought participants into the twentieth century with a talk on the history of in loco parentis—the college acting in place of the parent—a constitutional narrative that Mizzou found itself in the thick of in the 1970s. As Forrest noted in introducing the topic, this narrative began far earlier, in the decades after the Civil War. Specifically, in Pratt v. Wheaton College (1866), Stallard v. White (1882), and Gott v. Berea College (1913), the Supreme Court, siding with the defendant in each case, set a precedent of upholding the constitutionality of colleges’ in loco parentis right not only to regulate (or ban) anything from fraternity membership to off-campus dining but also to punish offenders at their own discretion. What emerged from this precedent seems almost unimaginable by modern standards: campus rules that censored speech, prevented political activism, and imposed curfews on students (and, moreover, that suspended any notion of due process in litigating infractions). When it came to the University of Missouri, the central actor in the tale of the rise and fall of in loco parentis was former Dean of Students “Blackjack” Matthews, who, from 1950-1970, handed out punishments ranging from expulsion to rescinding completed credit hours for “crimes” as grave as tardiness and speeding tickets.

At Mizzou (and elsewhere), push back against this system started small, with juvenile transgressions such as the May 1950 publication of a “sex issue” of ShowMe, a student-run, university-sanctioned magazine. The Cold War era, however, brought with it greater student vigilance. Forrest explained how, as mass culture became more pervasive and accessible during the late 1950s, students increasingly confronted a stark contradiction between the idealized, sitcom vision of the United States and the reality they were seeing on the news of a nation in which violent injustices had long festered and were being addressed on a collective, organized level. As a result, and in defiance of the rules in place, political activism spiked at colleges across the nation, with students becoming both vocally and actively involved in the Civil Rights Movement’s push for equality in particular. From this participation in national politics, a revolt against campus politics spun off. At MU, the student rights movement began with planned protests against dress codes, and quickly grew to engage with more recognizably constitutional issues. As Forrest noted in bringing his talk to a close, building on precedents set in Dixon v. Alabama (1961) and Tinker v. Des Moines Independent Community School District (1969), 1972’s Papish v. University of Missouri Board of Curators, which secured college students’ First Amendment right to free speech on campus, effectively nailed the coffin shut on in loco parentis, before the ratification of the 26th Amendment put one more nail in, just in case.

10:30 – 11:45  “President for Life: Simón Bolivar’s Constitutional Vision,” MU Associate Professor of History Robert Smale

1:00 – 2:15  “Prohibition Blues: New Approaches to America’s Dry Years,” Wilmington College Assistant Professor of History Keith Orejel

Click here for more information about the Teachers Academy.