By Jo Mathis
Legal News
When congratulating James Madison on his role in creating the U.S. Constitution in 1787, Thomas Jefferson noted that every constitution naturally expires after 19 years. Any longer, he said, was an act of force, and not of right.
Jefferson couldn’t have known that nearly 230 years later, later, it would still be in place as the oldest national constitution still in force in the world.
As the featured speaker at this year's University of Michigan Constitution Day celebration, the New York Times’ Supreme Court reporter Adam Liptak spoke for 90 minutes about the history of the Constitution, how it compares to constitutions around the world, what to celebrate about it, and the first 10 amendments to it.
Though a 19-year end point to a constitution may sound crazy—“That is in fact how long the Constitution of most nations lasts, on average,” said Liptak, a Yale-educated attorney who has covered the Supreme Court since 2008. “But the Constitution of the United States endures.”
Constitution Day is celebrated across the county each year on Sept. 17, the date that marks the 1787 signing of the U.S. Constitution in Philadelphia and recognizes all who, by way of birth or naturalization, have become American citizens.
Michigan Law hosts U-M’s celebratory Constitution Day program each year, as required of every educational institution that receives federal funding.
Though John Adams referred to the Constitution as “the greatest single effort of national deliberation that the world has ever seen,” Liptak said it was stained by the accommodations it gave to slavery.
“And that was among the great questions the Constitution left for future generations to solve,” he said.
Liptak noted that a recent study by the NYU Law Review found that the U.S. Constitution seems to be losing its appeal as a constitutional model elsewhere.
Most of the world, he said, finds our (4,400-word) Constitution too short, too old, and guarantees relatively few rights.
In fact, he said Justice Ruth Ginsburg has said she would not look to the U.S. constitution if she were drafting a constitution today, but would look at the constitution of South Africa, Canada’s Charter of Rights and Freedoms, or the European Convention on Human Rights.
Liptak said the Constitution is out of step with the rest of the world by failing to guarantee a right to travel, an assumption of innocence, and entitlement to food, education and health care. And he said the U.S. is among only 2 percent of the world’s population (a figure that also includes Guatemala and Mexico) that protects a citizen’s right to bear arms.
Liptak discussed the Supreme Court's controversial 5-4 2010 Citizens United decision in favor of free speech for corporations, which he called a “blockbuster case” because of its political, practical and constitutional consequences.
The Court has long recognized that corporations are covered by the First Amendment, Liptak said, adding that the Constitution protects both spoken information by whomever and mass-distributed information of the press by whomever.
He said First Amendment cases are now muddled by the fact that it’s hard to define the press. He said he’s happy to claim that the New York Times fits into that category, but added: “What about someone with a Twitter account? I don’t know on what principle you can distinguish one group from the other.”
Liptak told how 20-year-old University of Texas Law student Gregory Watson wrote a term paper in 1982 arguing for ratification of the 27th Amendment.
“His professor found his paper unconvincing and gave him a C,” Liptak said, to laughter from the crowd that included a few Michigan Law professors.
Watson didn’t give up, and the 27th Amendment became part of the Constitution 10 years later.
The brainpower on the current U.S. Supreme Court is “incredible,” but their life experiences are less so, said Liptak, who noted that the nine justices represent only two religions—Catholicism and Judaism—and are graduates of elite East coast law schools.
He said he doesn’t write about the way religion might affect their decisions, but wonders if he’s right to avoid the subject.
He worries that his first “down and dirty version” of a story—written to accommodate the needs of readers expecting immediacy—don’t get the same attention as his longer, better follow-up versions.
Liptak said the justices would never allow cameras in the Court—even if they suggest that they favor it during confirmation hearings—in part because they are terrified about being mocked by Jon Stewart or Steve Colbert.
When asked to name his favorite justice, he quipped: “Like a parent, I love them all the same.”
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