For five years I taught a course in constitutional interpretation as an adjunct professor with the Fund for American Studies/Georgetown University Capital Semester program, which brings students from other universities to DC for one semester to experience internships along with a full course curriculum. The stars of the program were often foreign students, which the Fund recruited especially from eastern Europe and the Middle East. In general the foreign students in the program came to class better prepared and were more serious than the American students, which may not be surprising as the fundamental questions of political order and social progress are more urgent in the young democracies of eastern Europe and the non-democracies of the Middle East.
When it comes to constitutions, most young people tend to be a combination of naïve idealism and textual literalism, paradoxically looking for bright line absolutes in the text to correspond with the sentimental egalitarianism of our time. So the central objective of my course was to get students to grasp the principles of the U.S. Constitution, as well as the underlying institutional and theoretical problems inherent in delineating and protecting individual rights. Constitutions are not self-enforcing documents; they rely on the prudential judgment of the citizens and their leaders. Almost all contemporary constitutions are long, windy documents with no theoretical ballast, and despite much longer enumeration of “rights,” protect them less well. Compare, for example, the one-sentence “takings” clause of our Fifth Amendment–“nor shall private property be taken for public use without just compensation”–with the corresponding clause of the draft constitution for the European Union, which reads as follows:
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
By the time you are done with the weasel words here (“public interest,” “general interest”), it is clear this long paragraph adds up to much less protection of property rights than our compromised takings clause.
Above all, I tried to get students to learn the ability to make distinctions between the principles of the Constitution and its compromises, and thereby have a deeper appreciation of the prudence or moderation of statesmen as Aristotle had in mind. This is extremely difficult to convey to students even over the course of a semester. It is almost impossible, for example, to get students to understand that the odious “three-fifths” clause of the original Constitution was actually a compromise that limited the power of slave-holding states, who wanted slaves counted as whole persons to increase their numbers in the House. Most students have simply marinated too long in the cliché that the Founders considered slaves as only three-fifths of a human being. They were usually stumped when I asked them if they’d have felt better about the Founders if they’d counted slaves as whole persons and thereby increased the political power of slaveholding states. Discussion of executive prerogative, as Locke discusses it in the Second Treatise, provoked even more incomprehension.
One of the more challenging units of the course concerned the Establishment clause of the First Amendment. Once again, most students have been bamboozled by the “wall of separation” nonsense, so this class unit dwelled on Thomas Jefferson’s Virginia Statute of Religious Liberty, as it contains Jefferson’s explanation of the reciprocal nature of religious liberty and individual rights more broadly. (I wrote about this topic for the Acton Institute several years ago.) I would also read to the class clauses from the constitutions of several Middle Eastern nations, nearly all of whom declare Islam to be the official state religion and the source of positive law. Could they not understand why this was a mistake, and a hindrance to the emergence of genuine democracy?
Students from Lebanon in particular usually sat on the edge of their chairs for this class session, and had deep and often painful observations on the unending conflicts of that small country as it tries to balance the frictions between competing Christian and Muslim sects–a difficult course even without the mendacious intrusions of Syria and Iran. The case of Egypt also came up, as their constitution recognizes Islam as the official state religion (an older version of the Egyptian constitution also proclaimed socialism to be the official economic doctrine of the nation, which explains a lot, too).
Which brings me to the star student from my last semester teaching the course–a young Egyptian lady who was an economics and finance major back home, but who was able to master the most subtle and challenging ideas I presented in the class. She actually did the reading ahead of time (a minor miracle in college courses today), came to class prepared, asked good and hard questions, but always got the point when I extended an explanation or argument.
The nub of our classroom discussion turned to what I described as the dilemma facing American policy makers and Egyptian advocates of liberal democracy alike–namely, that a free democratic election would follow the pattern of “one person, one vote–once,” as the Muslim Brotherhood or similar religious fundamentalists would almost certainly win, and no amount of constitutional draftsmanship could prevent the disaster that would follow. So the dilemma is having to back a dictator like Mubarak, or open the door to something worse. No one likes these choices, but it is fatuous to think we can make up a benign third choice out of whole cloth. So we go with Mubarak, cross our fingers and hope for the best.
My student expressed an unsurprising dislike of Mubarak, but after a long pause said: “I agree with you.”
I thought that took some guts to say in a classroom, where American students in particular resist the idea that sometimes the only choices in life are between bad and worse. But it also gave me hope that such maturity and seriousness exists in the best students from that troubled region.
I was in touch with this student only two weeks ago, working on recommendation letters for European graduate programs in economics to which she has applied. Needless to say I can’t reach her now. I’m crossing my fingers and hoping for the best.