The American university, once idealized as an ivory tower, is at risk of becoming an ideological echo chamber. Once scholars gazed out at a distant world from their monastic perch, debating how many angels could dance on the head of a pin. Now scholars seem to gaze out at the world from a single vantage point, vehemently agreeing that 2 angels + 2 angels make 5. Orwellian measures such as speech codes and trigger warnings bear some responsibility for the intellectual homogenization of higher education; but so, too, does a deeper divide within the professoriate.
Data from the Higher Education Research Institute reveal that the political leanings of university professors have grown increasingly uniform in recent years. By 2014, only 12 percent of professors (mostly in engineering and professional schools) were conservative, while approximately 60 percent were far left or liberal. 82 percent of law school professors are Democrats. (For my part, I am one of the rare 0.8 percent of female law school professors who are Republicans.) Ideological homogeneity together with the chilling effects of university policies constraining free speech make it increasingly hazardous for scholars to challenge ideas in a constructive and generative way. Universities are in danger of becoming places where orthodoxies are protected, not challenged, and personal sensitivities take precedence over the cultivation of knowledge.
Enter this anthology of essays on constitutional current events by Akhil Reed Amar, the Sterling professor of law and political science at Yale. Originally published as op-ed, columns, and news commentary, the essays engage a general readership on controversial issues ranging from the contours of executive power to recent convulsions in the culture wars. Expanded and thematically organized, the essays are compelling for what they have to say. And they are important for the very fact that Professor Amar has the intellectual fortitude and scholarly conviction to publish them.
For example, Amar’s treatment of the Supreme Court’s decision in Adarand Constructors, Inc. v. Peña would be viewed by University of California administrators as a “microaggression” productive of a “hostile learning environment” for criticizing affirmative action set-asides. The article, originally published with Amar’s fellow constitutional law scholar Neal Katyal in 1995, praised the Supreme Court for striking down race-based set-asides in government contracts. “Set-asides don’t help in the great American goal of integration,” the authors reasoned. “[They] are a recipe for ‘black’ and ‘white’ firms, with no mixture between the two.” Similarly, Amar’s articles touching on Bill Clinton’s lubricities might prompt a Title IX inquisition such as the one Northwestern professor Laura Kipnis endured for having the temerity to publish an essay challenging university sex codes.
While administrators seem to give scholars every reason to avoid controversy, the essays here are unapologetically and refreshingly opinionated. Moreover, Amar supports his opinions with the scrupulous attention to method and evidence that only a scholar of his caliber could muster. After all, he explains, he did not write this book simply in order to get his views across; he wrote it in order “to present a wide-angled yet detailed survey of contemporary constitutional law” as well as to explain “constitutional method, illustrating by example how to do constitutional law.”
Topics range from the Clinton impeachment to Bush v. Gore, from the war on terror to the culture wars. At the same time, Amar is a self-proclaimed “constitutional textualist” whose scrupulous attention to the text, history, meaning, and structure of the Constitution shapes his understanding of constitutional controversies. Readers will find a handy primer on the Senate’s labyrinthine cloture rules in Amar’s essays on the filibuster, and they will likewise find a compelling “third-way” approach to the Second Amendment in his essays on gun rights.
Nevertheless, readers may find some of Amar’s positions to be strained. For example, in a self-published 2011 essay, Amar offers a spirited originalist defense of the Affordable Care Act as a piece of civil rights legislation in the spirit of the Reconstruction Amendments: “Congress has chosen both to subsidize health care so as to ensure each American’s basic civil right/human right to be truly free from servile dependence to others, and also to prohibit discrimination against preexisting conditions in order to ensure each American’s entitlement to be truly equal at birth.” The argument seems more 20th-century Rawlsian than 19th-century Republican, but it is a telling argument, nevertheless: It demonstrates how big a tent constitutional originalism now occupies, welcoming liberals and conservatives alike within its interpretive framework.
Other positions are downright cheeky, as when Amar proposes in an article from the 2008 presidential campaign that “the best constitutional argument for Romney is one that he has never made: To make amends for America’s long history of discrimination against Mormons, voters should consider engaging in electoral affirmative action for Latter-day Saints.” Mind you, this is the same essay where he sees Hillary Clinton alternately as a modern-day Alexander Hamilton and a 21st-century Eleanor Roosevelt. (Oh, really?)
The reader will undoubtedly disagree with some (or many) of Amar’s views, but that is part of the package: Substantive disagreement is essential to discovery and learning. In this respect, Amar’s collection embodies the spirit of the 1974 Report of the Committee on “Freedom of Expression at Yale.” Spearheaded by C. Vann Woodward during the 1970s, the report has since become the definitive defense of free expression on campuses for its finding that:
Regardless of where the reader falls on Amar’s conclusions, there is no question that this bold professor dares to do all of the above.
Which is no accident, as Amar’s remembrance of the life and career of Robert Bork, also included in this volume, reveals. Bork taught Amar constitutional law at Yale Law School, leaving a profound impression upon the young scholar not because Amar felt any particular affection for his professor but because “Bork’s truculence in the classroom made me want to fight back—but to do so, I had to work hard and drill down. In the proc-ess, I came to love constitutional law, a subject that had not electrified me as a first-year student in an introductory course taught by a gentler and less edgy professor.” The reality, he explains, is that “a law professor’s job is to train students to think rigorously. Bullshit does not win cases. So even as I disliked Bork’s demeanor at the time, I have since come to admire his honesty. Here was a man who cared enough about ideas to defend his own, and to hit yours head-on if he thought they deserved it.”
The Constitution Today hits hard; what is more, it dares the reader to hit back. In this regard, it showcases scholarship fulfilling its greatest potential: engaging meaningfully and unflinchingly with the world beyond the university in terms intelligible to the layperson. To be sure, Amar is a powerful intellectual force within the academy, where his work on constitutional history continues to shape our understanding of the Bill of Rights. He is also an authority within the legal profession, where his scholarship is routinely cited by the Supreme Court. But these essays showcase Amar’s influence in a different way, reflecting the capacity of a serious scholar and gifted teacher to educate an audience beyond the lecture hall—to distill complex constitutional questions into terms accessible to inquisitive citizens.
This enterprise has been more than a diversion for Amar; it has been a vocation. As he explains in the book’s introduction:
That Amar did not pursue this vocation until after he got tenure may have been of less significance in the early 1990s than it would be today. After all, the edification of the general public is not among the bases upon which universities grant tenure. But today’s untenured faculty know better than publicly to express opinions frowned upon by the majority of their colleagues. Doing so could be career suicide for a young scholar. Additionally, recent controversies (such as the one over Halloween costumes at Amar’s Yale) reveal that not even tenure can spare the most accomplished of scholars from the heckler’s veto.
The Constitution Today thus serves as a tonic to the dyspeptic climate on campuses that gives scholars every reason to avoid controversy. The essays here are unapologetically opinionated and scrupulously supported. They represent C. Vann Woodward’s vision of the university at its highest achievement, but they are dedicated to a different Woodward altogether—Bob Woodward—to whom Amar pays tribute as mentor and friend. He styles himself a “freelance constitutional journalist” uniquely situated to bring perspective on the longue durée to the nouvelles quotidiennes.
Amar does bring the long view to the day’s legal news, but calling these essays journalism in the spirit of objective investigative fact-gathering is a bit of a stretch. What makes the articles here so compelling is their synthesis of scholarly objectivity with pointed subjectivity. They are constitutional commentary at its best: clear, compelling, and controversial. And they raise a question: Will this collection embolden other, equally powerful voices within the academy to join in the public fray?
Tara Helfman teaches at Syracuse University College of Law.
