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A Guide to
THE CONSTITUTION
That Delicate Balance
A Thirteen-Week Telecourse
A Guide to
THE CONSTITUTION
That Delicate Balance
A Thirteen-Week Telecourse
George McKenna
City College of New York
AN ANNENBERG/CPB PROJECT
RANDOM HOUSE NEW YORK
To Sylvia
The Constitution: That Delicate Balance is produced by Media and Society
Seminars, a program of the Columbia University Graduate School of
Journalism, in association with WTTW/Chicago and WNET/New York.
The telecourse is made possible by a grant from the Annenberg/CPB
Project.
First Edition
987654321
Copyright © 1984 by Media and Society Seminars
All rights reserved under International and Pan-American Copyright
Conventions. No part of this book may be reproduced in any form or by
any means, electronic or mechanical, including photocopying, without
permission in writing from the publisher. All inquiries should be ad¬
dressed to Random House, Inc., 201 East 50th Street, New York, N.Y.
10022. Published in the United States by Random House, Inc., and si¬
multaneously in Canada by Random House of Canada Limited, Toronto.
ISBN: 0-394-34125-2
Manufactured in the United States of America
“77?<? one who pleads his case first seems to be
in the right; then his opponent comes and puts him
to the test. ”
PROVERBS 18:17.
Preface
In writing this guide to the telecourse based on The Constitution: That Delicate Bal¬
ance, I have tried to keep in mind the best qualities of short textbooks. I have also
kept in mind that this book must be more than a short text. Because of the uniqueness
of The Constitution: That Delicate Balance, the guide must take on some aspects of a
college classroom experience.
The common thread of most telecourses is the role of their television component.
Television provides unity for the course by supplying its authoritative voice. Typically,
the TV component features either a noted authority lecturing or some kind of narra¬
tive with a similarly authoritative voice-over. The program may include debates and
exchanges of opinion, but it always returns to the single voice.
The Constitution: That Delicate Balance is different. It is a unique and daring ex¬
periment in television education, for it has no single voice. It is, instead, a series of
programs whose participants spend their entire time arguing! No firm conclusions are
supplied by anyone: certainly not by the programs’ moderators, whose function is to
stimulate, not resolve, argument; and not by Fred Friendly and retired Supreme Court
Justice Potter Stewart, who explain key terms and provide perspective during breaks in
the programs but make no final pronouncements on the issues.
The absence of this authoritative voice is not an oversight or shortcoming in the
design of the programs. It is deliberate and, given the nature of the issues, it is inevit¬
able. Over topics such as abortion, public school prayer, and affirmative action, reason¬
able men and women in a pluralistic society can—and must—disagree. These are issues
not easily resolved. They may be insoluble, though even that conclusion is premature.
For on all of these issues the jury is still out—and will be until these matters have re¬
ceived more systematic, comprehensive, and informed examination. The purpose of
this series is to help provide such an examination. If it has any underlying premise, it is
the premise of Oliver Wendell Holmes, Jr., that truth is best reached by the “free trade
in ideas.” There is no monopolist on any of these thirteen programs, no single voice
that presumes to resolve everything for us. This would be a presumption contrary to
the spirit of the programs and the spirit of a democratic society.
Yet the very virtues of these programs present tough challenges to the educator.
Any good course in public policy and public ethics must include debate and disagree¬
ment, but it must also have unity and coherence. In the television series at hand, there
are two types of unity: of theme and of purpose. The theme is the Constitution, or at
least some of its more Delphic clauses and amendments. (The programs, of course, go
beyond the legal issues of the Constitution to raise basic problems of policy and ethics.
But the Constitution serves as a kind of gridiron, marking out the key issues.) The sec¬
ond unity, the unity of purpose, is best summed up by the man who developed the
technique used in these programs. Their aim, according to Fred Friendly, is to put
both participants and viewers “into situations so agonizing that they can escape only
by thinking.”
Vll
Vlll PREFACE
A third unity is required to turn the TV series into a course, and that is unity of
organization and substance. There must be more than argument; there must be grist
for the arguments. Fred Friendly and Martha Elliott’s book The Constitution: That
Delicate Balance helps to provide this grist by offering students a background in lead¬
ing constitutional cases. But more is needed. Key issues should be identified and
placed in their historical and political context. There should be an account of how
these issues have fared in the Supreme Court and in the wider court of public opinion.
Finally, the student should be helped through the exciting, bewildering maze of argu¬
ments in the TV series. How do the arguments develop? Which are most prominent?
What techniques do the participants use to refute their opponents? What assumptions
are made? What questions are left begging?
All these remaining areas, from the historical context to the current arguments on
the TV series, need to be gathered together in a book that provides organization and
coherence. This is such a book. It is intended to have some of the properties of a use¬
ful short textbook—basic substance, good organization and development, clearly
marked section headings, summaries, and other guides for students and teachers. It is
also meant to respect its readers, never to talk down or condescend to them. It intends
to convey the sense that is it talking with readers; not hurling down pronouncements
from Mount Olympus but entering into a series of conversations.
Given the nature of this course, the last considerations assume special importance.
From the inception of this project, I have kept in mind that one way this material
might be offered was as a telecourse for off-campus learners. In such a form, the
course would provide students with stimulating learning materials but with limited
classroom contacts. Here is a gap that needs filling; this book will try to fill it. Groping
for a metaphor to characterize this book, I can only suggest “a freeze-dried professor.”
The metaphor is inexact, since the book is not intended to be dry, much less frozen.
All it means is that the book aims at simulating the atmosphere of a college classroom:
of a professor lecturing, inviting discussion, responding to questions—and complaints—
from the students. In the course of a semester, this process is not always smooth; it
can, at times, get somewhat shaggy and discontinuous. That is the way higher educa¬
tion is; it is not machine-tooled. It is a humanistic endeavor, so it has to be conducted
by human beings.
The manuscript of this book was typed on a word processor. It was not, however,
written by a word processor. It was written by one who has spent over twenty years
teaching college and has found the experience fulfilling. In the existential give-and-take
of classroom discussion, the professor and students are brought together in a joint
endeavor that, at its best, begins to erase the barriers between them. If that spirit has
found its way into the following pages, it may overcome whatever human imperfec¬
tions they contain.
ACKNOWLEDGMENTS
Fred W. Friendly, journalist, teacher, and scholar, was the organizing genius behind the
programs that inspired this book. He and his wonderful wife, Ruth, have been in-
PREFACE IX
defatigable in their campaign to get ordinary citizens involved in the great constitu¬
tional debates of our time. In his words, “the Constitution is too important to be left
entirely to jurists.” The Friendlys communicated that spirit to everyone involved in
this project.
Stuart Sucherman, Executive Producer of the series, offered constant support and
encouragement; a modest man, he will never realize how much he helped me. Pro¬
ducers Jude Dratt and David Kuhn were extremely cooperative and cordial. Martha
Elliott, Fred Friendly’s coauthor, supplied fascinating insights into the factual back¬
ground of many of the cases studied in this book.
Indispensable advice, information, and criticism were provided by Valerie Crane
and her associates, who field-tested chapters of this book; by attorney and constitu¬
tional authority Howard W. Gutman; and by Professors Wayne Brady, Philip Dolce,
Robert Gilbert, Rosalie Siegel, and Martha Zebrowski, who read and commented on
various chapters.
Tim Gunn, Director of Public Programs in the Education Division of public tele¬
vision station WNET in New York, recruited me and gave me the freedom to undertake
the task as I saw fit. Good friend Marie Squerciati of WNET coordinated work on the
video and written portions of the telecourse, eloquently promoted the course, and en¬
couraged and reassured one given to occasional fainting spells. Cathy Cevoli of WNET
went over the manuscript with a professional writer’s eye, purging it of academese and
breaking up its three-page paragraphs. The manuscript was expertly word-processed by
WNET’s Nancy Hayes-Davis and Alan Ellington.
At Random House, judicious editing by Jeannine Ciliotta kept the “freeze-dried
professor” from digressing and bantering too much. Jeff Longcope and Bert Lummus
helped develop the manuscript, and David Rothberg played an indispensable role in
turning it into a book.
At the Media and Society office of Columbia University’s Graduate School of
Journalism, Barbara Eddings and Natalie Paine were always a great help. Michael Ep¬
stein assisted in putting together some of the appendixes to the chapters, and Cynthia
McFadden provided useful information.
I am grateful to Professor Joyce Gelb, Chair of Political Science at City College of
New York, for helping me secure the sabbatical leave that gave me time to work on
this book.
The final acknowledgment can be stated most simply: I could do nothing without
my dear Sylvia.
George McKenna
New York City
March 1984
Contents
Preface vii
Introduction: Ground Rules xiii
Part One: The Process of Government 1
Chapter 1. Ambition Against Ambition 3
Chapter 2. The President’s War Powers 35
Chapter 3. Somehow It Works ... or Does It? 70
Part Two: Criminal Justice in America 105
Chapter 4. “A Creeping, Crawling Crud” 107
Chapter 5. Criminal and Insane 138
Chapter 6. Jail. .. Prison ... Something Worse 167
Part Three: Liberties and Responsibilities 201
Chapter 7. Money, Politics, and the First Amendment 203
Chapter 8. Shouting Fire: Rights and Duties of the Press 234
Chapter 9. “Praise the Lord and....” 264
Chapter 10 Right to Live, Right to Die 303
Part Four: Peoples and States in America 337
Chapter 11. “... Your Tired, Your Poor.” 339
Chapter 12. Should Laws Be Color-Blind? 368
Chapter 13. Out of Many, One 395
Appendix: The Constitution of the United States 427
xi
Introduction:
Ground Rules
"It is emphatically the province and duty of
the judicial department to say what the law is. ”
CHIEF JUSTICE JOHN MARSHALL, 1803
"In considering this question, then, we must
never forget, that it is a constitution we are
expounding. ”
CHIEF JUSTICE JOHN MARSHALL, 1819
Some of the issues in this book touch the highest levels of statecraft. These include
questions of presidential prerogative and congressional power, the right to make war
and conclude treaties, the doctrine of checks and balances. Other issues may invade
the lives of quite ordinary Americans: whether or not to disconnect the respirator of a
dying relative, whether or not a retarded and disabled infant should undergo an opera¬
tion, whether or not someone should get an abortion. The issues in this book also in¬
clude the role of money in American elections, the use of racial quotas, freedom of the
press and national security, euthanasia, gun control, prayer in public schools, immigra¬
tion law, the right to assemble, the workings of our electoral college and our federal
system. The range and mix of issues is somewhat bewildering. What holds them all to¬
gether? What is the cornerstone of this book?
It is the United States Constitution.
Some of the Founding Fathers would probably be startled to Find that the Con¬
stitution now encompasses all these issues. When the Constitution was written back in
1787, the laws were not much involved in people’s lives; and when they were, they
were usually local laws. Disputes began at the local level and ended there-unless they
involved some obviously national question, like the defense of the country or a treaty
with a foreign nation. But as this country has grown in size and complexity, as tech¬
nology has created new problems in the course of resolving old ones, people have
turned to our Constitution for answers. We did not have respirators back in 1787, nor
did we have television, high-speed transportation, or thermonuclear weapons. Today
we do, and to pretend that such things have no relevance to the Constitution is to
attempt to keep this nation’s supreme charter locked up in a glass case. That, surely,
none of the Framers would have wanted.
They need not have worried. The Constitution is alive today, as vital as it ever was.
We continue to turn to it for answers to our public disputes; we study it for clues
xiii
