INSTITUTE FOR THE AMERICAN CONSTITUTIONAL HERITAGE | THE UNIVERSITY OF OKLAHOMA
CONSTITUTIONAL Fall 2011 Newsletter, Vol. 1, Issue 1
Herit age
Informat ion & Content IACH FACULTY Kyle Harper, Director (Roman History) Kevin Butterfield (Early American History) David Chappell (Civil Rights) Luis Cortest (Natural Law Tradition) Rufus Fears (Roman History) Ronald Keith Gaddie (American Government) Paul Gilje (Early American History) James Hart (English Constitutionalism) Jonathan Havercroft (Political Theory) Allen Hertzke (Religion and Politics) Rebecca Huskey (Classical Reception) Catherine Kelly (Early American History) Eric Lomazoff (American Constitutional History) Donald Maletz (Political Philosophy) Brian McCall (Commercial Law) Ronald Peters (American Government) Andrew Porwancher (American Constitutional History) David Ray (American Government) Nim Razook (Law and Business) Lindsay Robertson (American Indian Law) Michael Scaperlanda (Constitutional Law) Ann-Marie Szymanski (American Political Development) Harry F. Tepker (Constitutional Law) Joseph Thai (Constitutional Law) Justin Wert (American Constitutional History) Michael Winston (18th Century French Literature) Fay Yarbrough (American History) Linda Zagzebski (Virtue Ethics and Epistemology) Website iach.ou.edu
E-mail iach@ou.edu
Š 2011 The University of Oklahoma Board of Regents The University of Oklahoma is an equal opportunity institution. This publication was printed at no cost to the taxpayers of the State of Oklahoma.
CONTENT Letter from the Director.............................. 2
Year in Review.................................................. 3 Constitution Day panel; First Monday; Habeas Corpus: Law and Legitimacy in Times of Crisis and more
Year in Preview............................................... 4 Religious Freedom in the American Constitutional Heritage; Oklahoma, Health Care Reform and the Constitution; Civil War Lecture Series and more
Opinion............................................................ 5 - 6 One Historian’s View on the Constitutional Studies Student Association by Kevin Butterfield
Features.............................................................. 7 Student Profile: Aly Feliciano, Letters-Constitutional Studies Senior Course Profile: Interpreting the American Founding
Letter from t he Direct or Support the IACH
When President Boren asked me to serve as the founding Director of the IACH, I accepted because I knew it represented a special opportunity. What we are doing simply isn’t happening anywhere else. OU is now the only top-tier university where an undergraduate student can concentrate or minor in Constitutional Studies. That’s truly unique. It’s exciting. I often have the opportunity to tell people what we are doing at the IACH, and so far no one has told me, “You know, people just know too much about the Constitution these days.” What we are doing is so obviously necessary for the civic health of our country. The motto of OU is civi et rei publicae. That means “for the citizen and for the state.” The motto reminds me, constantly, that an education should be about the type of citizens our students become. The goal of a college education should be about more than job training (although I hope we are preparing an educated workforce, too). It should be about citizenship training. Our first year was an exciting one. We have now hired three outstanding new faculty members. Kevin Butterfield joined us in August 2010. Already, he has introduced courses that have been amazingly popular among students. Eric Lomazoff and Andrew Porwancher came on board in August of this year and have already energized our operation. The affiliated faculty is now at 27 members, and I am so grateful for all of their investment in the program. Truly, the IACH is a joint venture between departments and between faculty members with different backgrounds. We had an exciting year of programming, highlighted by our Constitutional Studies Symposium in March. This year we have planned an even more eventful calendar. I hope you will join us at our events and programs. My vision for the IACH includes a strong element of community engagement. I want to make OU the hub in Oklahoma for constitutional discussion.
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I thank you for your support of the Institute. Without your contributions and encouragement, the IACH would not have made the progress that it has in such a short time. As always I encourage you to stay involved with what is happening at the Institute by visiting our website, iach.ou.edu. With gratitude,
Kyle Harper, Director, IACH
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Year in Review august Kevin Butterfield was the first faculty member hired specifically for teaching Constitutional Studies courses. Butterfield holds a Ph.D. in history from Washington University, St. Louis. He is an expert on civil society and constitutional values and teaches courses on “Law and Life in America” and the extremely popular “Secret Societies in American Culture.”
september The IACH kicked off the 2010-2011 academic year by celebrating Constitution Day on Friday, Sept. 17. In recognition of the 223rd anniversary of the signing of the U.S. Constitution, the IACH hosted a panel com-
Harry F. “Rick” Tepker and Justin Wert
prised of Harry F. Tepker (Law), Joseph Thai (Law), Justin Wert (Political Science) and Kevin Butterfield (Classics and Letters) to discuss topics related to the Second Amendment. The panel was the first event of its kind for the Institute and was well attended by students, faculty and the public.
october To recognize the first day of the Supreme Court session the IACH cosponsored with the College of Law “First Monday,” a Supreme Court Preview, on October 4. Topics of discussion included “Do restrictions on violent video games violate the First Amendment?” and “Does the First Amendment protect protests at military funerals?” Panelists for this event were Kanika Capel (Law), Harry F. Tepker (Law), Joseph Thai (Law) and Justin Wert (Political Science).
march The innagural Constitutional Studies Symposium, “Habeas Corpus: Law and Legitimacy in Times of Crisis,” was held on March 25. The symposium featured Lee Kovarsky, New York University; Gordon Silverstein, University of California; Paul Halliday, University of Virginia; Stephen Vladeck, American
IACH director Kyle Harper (left) moderates discussion between Judge Raymond Randolph (center) and Professor David Cole (right) at the Constitutional Studies Symposium.
University; Justin Wert, University of Oklahoma; Mark Graber, University of Maryland; David Cole, Georgetown University; and Judge Raymond Randolph, U.S. Court of Appeals for the D.C. Circuit. The Constitutional Studies Symposium will continue to be the annual cornerstone event for the IACH and will attract the nation’s top legal and historical minds.
april As the academic year began to draw to a close, the IACH was busy recruiting outstanding students into the newly established Society of Fellows. The first group of Fellows is comprised of 15 of the University’s most outstanding students who are our next generation of leaders. The Society will meet montly for dinner debates over constitutional topics.
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Year in Preview august Eric Lomazoff and Andrew Porwancher joined the IACH at the rank of assistant professor. Lomazoff holds a Ph.D. in government from Harvard University and Porwancher holds a Ph.D. in history from Eric Lomazoff Cambridge U n i v e r s i t y. For their first semester at OU, both are teaching Introduction to Constitutional Studies. Lomazoff also is Andrew Porwancher teaching “The Constitution and the Economy,” while Porwancher teaches “Debating Constitutional Controversies.”
september On September 7 the IACH held the first lecture of the Religious Freedom Project. Professor Allen Hertzke, who is chairing the RFP, discussed “Religious Freedom in the American Constitutional Heri-
tage: Global Impact and Emerging Challenges.” Hertzke is one of the most prominent scholars in the field of religous freedom in the United States and abroad. Constitution Day was observed by the IACH on September 14. This year’s topic of discussion was “Oklahoma, Health Care Reform and the Constitution,” with Oklahoma Attorney General Scott Pruitt and Solicitor General Patrick Wyrick. The first lecture of the Civil War Lecture Series, commemorating the sesquicentennial anniversary of the Civil War, was held on September 27. The first lecture featured William W. Freehling, Singletary professor of the humanities emeritus at the University of Kentucky. The topic of Freehling’s lecture was “Excruciating Labor: How Secessionists Destroyed the Union.”
october The second Civil War lecture will take place on Mon., October 17 at 7 p.m. in Meacham Auditorium, Oklahoma Memorial Union. Vernon Burton, professor of history and director of the Clemson Cyberinstute at Clemson University, will lecture on “The Age of Lincoln and the Civil War.”
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november On Tuesday, Nov. 8, the IACH will host the final lecture of the Civil War Lecture Series. Tony Horwitz, recipient of the Pulitzer Prize for national reporting and the James Aronson Award, will lecture on “Midnight Rising: John Brown and the Raid that Sparked the Civil War” at 7 p.m. in Meacham Auditorium, OMU. Russell Hittinger, William K. Warren professor of Catholic studies at the University of Tulsa, will give a lecture on “Natural Law and Human Rights in the Post-War World.” in the Scholars Room, OMU on Tuesday, Nov. 15 at 4:30 p.m.
spring 2012 On Wednesday, Feb. 27, the IACH will hold a “Constitutional Studies Teach-in.” The teach-in will offer an unique opportunity for the OU community to learn from some of the foremsot constitutional scholars. The IACH will hold the second annual Constitutional Studies Symposium, “Religious Freedom in America: Constitutional Traditions and New Horizons,” will be held on Monday, April 2. Information for the symposium will be available at iach.ou.edu. CONSTITUTIONAL HERITAGE | 4
Opinion One Historian’s Views on the OU Constitutional Studies Student Association by Kevin Butterfield
There is a great deal that is remarkable about the Institute for the American Constitutional Heritage. One that stands out to me is the intellectual breadth of it all: the diverse perspective that the faculty and students here bring to our study of the U.S. Constitution and the political way of thinking that it embodies reaches from the ancient world to the upcoming term of the Supreme Court—and covers so much in between. Within an academic world of increasing specialization and narrowly focused monographs the University of Oklahoma has created something truly panoramic. Another aspect of what has been happening at OU that, to my mind, is equally impressive is the studentformed and directed Constitutional Studies Student Association. This group has held serious discussions about some of the pressing issues of our historical moment, and has done so in a remarkably open and nonpartisan manner. In short, this is an organization in which the students hope to better educate themselves, not indoctrinate one another. And the part that may be surprising: historically speaking, that has been hard to do.
In the first three decades after the passage of the Constitution, all kinds of groups were formed to help Americans better understand the political world in which they lived, and to help those citizens be vigilant in protecting their new republic from its enemies. These groups almost inevitably either began as or, in one way or another, became tools of partisanship and faction. The Society of the Sons of St. Tammany in New York City, for instance, morphed within a decade from a fraternity organized around open discussion and brotherhood into a notoriously partisan club. But, it was from the worries and anxieties that such groups caused that the first generations of Americans unintentionally learned a lot about constitutional self-government. The first such groups that formed after the creation of the new federal government in 1787 were the Democratic-Republican Societies. These were groups of farmers, artisans and other men of the lower or middling sort who lived in cities and rural communities from the Northeast to the backcountry of South Carolina in the early to mid-1790s. Members saw themselves as serving the indispensable purpose of observing the government, mutually informing and improving one another, discussing the issues of the day and disseminating true and helpful information to one another. They insisted that they came together for good, re-
publican purposes, “for deliberating, for thinking, for exercising the faculties of the mind,” one writer noted. President George Washington, though, saw these societies as a danger to republican government, because most of them were critical of his policies: the clubs were “self-created,” he declared, that is, not created by the people through constitutional means, and were thus “unknown to the laws of the country.” The Rev. David Osgood, speaking in Medford, Mass., emphasized that men who joined lost their freedom of thought: “the moment a man is attached to club, his mind is not free.” An “independent freeman,” Osgood fretted, “is converted into a mere walking machine.” Such organizations, he declared, might just subvert the independence of thought required for the American experiment to succeed. When farmers in western Pennsylvania convened and even armed themselves in resistance to a federal excise tax on whiskey in 1794, members of the Democratic-Republican societies were widely blamed as instigators. Their efforts to reassure their critics that they had pure, civic motives were not enough. Though, as Sean Wilentz has observed, the Democratic-Republican societies were “models of democratic decorum,” conjectural skepticism about their internal affairs—about the ways in which they might make automatons out of their members—would echo for
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years to come. So how should it be done? How could an organization be created that would educate citizens and not manipulate them? In essence, that problem echoed larger concerns that had produced the Constitution in the first place. How can the need for individual autonomy and the need for effective government be balanced? The first generations of Americans worked these problems out, though their solution may not seem particularly elegant. They seized on the idea of procedural fairness. On a small scale, in countless voluntary associations, as well as on the grand scale of constitutional government, Americans learned that rules were not bad things. One woman who joined a reading club in Connecticut around 1800 emphasized that the members of the Ladies’ Literary Society had, quite purposefully, chosen to create constitutional rules to give shape to their proceedings. “We shall do well if we pay a strict attention to the rules of our institution,” she told her fellow members at one point, for “in departing from them while they are in forced—we are sure of creating uneasiness for our selves and others.” American men were learning many of the same lessons about how to organize themselves. All kinds of associations, even partisan political clubs, began to emphasize procedural fairness. The members of the Washington Benevolent Societies, largely Federalist clubs that formed throughout the Northeast during the administrations of Thomas Jefferson and James Madison, are a good example. Another example is the society in Philadelphia, which had elaborate provisions regarding expulsion that were, in every way, protective against arbitrary dismissal. From the perspective of the members of the societies themselves, the clubs were well regulated and bound constitutionally to act in ways that would not subject a member to arbitrary authority.
The Democratic-Republican clubs of the 1790s had no such rules. Much had been learned about how such societies ought to be formed. By the second decade of the 19th century, associations such as the Washington Benevolent Societies had a pretty good idea about how they could operate without infringing on the rights of their members. So, when people attacked the Washington Benevolent Societies, such as Sylvester Pond in a much-reprinted exposé about the Federalist club in his hometown in Vermont, they tended to fault the clubs for not even adhering to their own professed standards regarding individual membership. They claimed to be open to political debate, Pond said, but “every principle that does not favour their peculiar notions about politics is kept out of sight.” They claimed to be open to supporters of the Constitution, but “Then why reject all republicans and receive every federalist, let his character be what it may?” It appears from some of the few extant records of individual Washington Benevolent Societies that allegations of internal tyranny and political control were unfounded. Members of the club in Northwood, N.H., in 1813 went out of their way to explicitly deny any authority over their members in terms of how they voted. After some members proposed that they should support a certain slate of candidates, the club membership as a whole had second thoughts. They resolved “that as this Society has no power, so it has no wish to dictate to any member the manner in which he shall exercise his privileges as a citizen—but would leave him as it finds him, responsible only to his own conscience, his country and his God.” These were not assertions made publicly to appease outsiders; these were proceedings recorded in a private book of minutes, displaying a genuinely held belief about the limits
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of associational authority and the need to make efforts to preserve individual members’ autonomy. No better statement could be made of what had, over the course of the last decade of the 18th century and the first decade of the 19th century, become the widely accepted understanding of the minimal level of autonomy that any individual member of a political fraternal organization ought to maintain.
RESEARCH PROFILE Kevin Butterfield is a historian of the early American republic, studying the legal and political culture of the Revolutionary and early national periods of the United States. He is currently working on his first book manuscript, a study of the changing meanings of the concepts of voluntary association and voluntary membership in the 60+ years following the American Revolution. In his research, Butterfield examines groups ranging from moral reform to reading clubs to labor unions that offered ordinary individuals experience in constitutional self-government. To be sure, Americans from the days of Jefferson to the present have become proficient at forming organizations of politically likeminded people to push for a particular cause or to further a set of political beliefs. But in the wake of the American Revolution many citizens also worked out the basic ideas of how to form an organization that could work without demanding uniformity of thought. Our own CSSA is an heir to this tradition. They have drafted a constitution and established rules of procedure. They have actively forestalled narrow-mindedness in favor of open debate and discussion, and they have formed something truly remarkable.
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Feat ures STUDENT PROFILE: ALY FELICIANO Major: Letters - Constitutional Studies Minor: Political Science Classification: Senior Hometown: Present Valrico, Fla. Why Constitutional Studies?: Having the opportunity to transfer to OU to participate in the Constitutional Studies program has been an amazing experience. The faculty are focused on helping students expand our knowledge of the philosophical, historical and political events of the founding era and all the events that are connected. They aren’t only preparing us for the work force, they are preparing us to be citizens. Most importantly, the program has given me the confidence to be an active member of a unique political system in which I am fortunate to have a voice.
COURSE PROFILE: INTERPRETING THE AMERICAN FOUNDING Course: LTRS 3353
Professor: Kevin Butterfield
Interpreting the American Founding examines the various ways that scholars have interpreted and explained the Founding over the past two hundred years. The course explores the immediate causes and the consequences of the American Revolution and the Ratification of the Constitution by reading some of the most important historical explanations of that momentous period that have ever been offered. By studying a wide range of interpretations, students will encounter the methods and models professional historians use to study the past and will see that American history is a critical enterprise of analysis, not a set of received facts.
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Univ. of Oklahoma Institute for the American Constitutional Heritage 650 Parrington Oval, Carnegie Building, Room 210 Norman, OK 73019