Terry Cowgill

Forum Offers Window Into A Brilliant Mind

October 21, 2006 on 11:06 am | In Local, Main |

[Photo of Ahkil Reed Amar with Salisbury Forum President Franck A. de Chambeau courtesy of my Fujifilm S 5200 digital camera]

Last night I went to the Salisbury Forum’s first offering of the season. The subject — the history of the Constitution and the balance of powers — didn’t seem like the kind of lively lecture that would bring a couple hundred people into the Salisbury School chapel, perched high on a wind-swept hilltop on this ugly and blustery night.

Here’s the short version of my take on the event. We got a window into the mind of a brilliant man — Yale Law School Prof. Ahkil Reed Amar — who could very well wind up with a seat on the highest court in the land.

You heard it here: If you were at the forum last night, in just a few years you can say you saw Amar speak (and perhaps got a signed copy of his book) before the general public knew who he was when President Hillary Clinton nominated the former clerk for Justice Stephen Breyer to the Supreme Court. And, of course, you can say you learned a lot from listening to his lecture as well.

I exaggerate but only slightly. This fellow has all the best attributes I can think of in an educator and a possible justice: first-rate scholarship; the ability to explain his subject matter in a lively and accessible way; and — best of all — an unpredictable set of views that still seem bound together by a discernible mainstream philosophy. And he is a registered Democrat, so watch out, Antonin Scalia!

Here’s a sampling of what I learned. Amar began by saying that most people associate the phrase “Balance of Powers” with the three branches of government. But there is also a balance of power within the branches themselves: the judicial branch has both judges and juries; the legislatures are typically bicameral; and the executive branch has the power to convene grand juries that sometimes go against the executive’s wishes.

And the man offered insight into what accounts for the extraordinary degree of freedom we have as Americans. When he asked the audience what keeps us free, the responses were fairly typical: universal suffrage, a free press; lawyers (that response got a chuckle from everyone!).

No, Amar said. When the nation was founded, entire classes of people could not vote. As for a free press, under the Alien and Sedition Acts of 1798, anyone “opposing or resisting any law of the United States, or any act of the President of the United States” could be imprisoned for up to two years. It was illegal to “write, print, utter, or publish” anything critical of the president or Congress. It was also a crime to criticize slavery in many parts of the South.

“People were thrown in jail for basically saying what Howard Dean is saying every day,” Amar quipped.

We remained free, Amar said, in much the same way Switzerland has. They have mountains; we have oceans (which he called “moats”), as do the Brits — another example he cited of a mostly free society. Is it our military that keeps us free? Yes and no, he said. Before World War II, the U.S. never had a large standing army during peacetime.

Asked which president he thought had most abused executive power, Amar forgivingly pointed to his hero, Abraham Lincoln, who suspended habeus corpus, among other things, Woodrow Wilson (I forget what he did) and Franklin Roosevelt, who set up internment camps for Japanese Americans and tried to pack the Supreme Court. He said he was willing to cut Lincoln and Roosevelt some slack because of the grave situations they faced. As for President Bush, Amar offered him no slack because — agree or disagree with the war in Iraq — it was “a war of choice.”

But the most interesting moment was when Amar was asked about whether he viewed the Constitution as a fixed proclamation or, as Al Gore has suggested, “a fluid document” subject to differing interpretations depending on the prevailing social climate. Amar burst forth (he did a lot of bursting forth last night) with a strong view that fluidity cuts both ways.

“The one reason I get a little nervous about a living document is what if we evolve away from equality?” he asked rhetorically. “You risk moving away from the very freedoms people fought and died for.” The living, breathing aspect of the Constitution is our ability to amend it, as we did with the 13th Amendment that ended slavery, he said.

I don’t know if Amar has written and said controversial things while a professor at Yale Law, as Judge Robert Bork did, so it’s not known if he would be “Borked” if nominated to sit on the high court. But I can tell you one thing. I would love to see him field questions from Orrin Hatch and Ted Kennedy during confirmation hearings. I might even call in sick to watch C-SPAN all day.