The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University

5. Ordered Liberty

[ 94 ] 5 Ordered Liberty On the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, or the like freedom of the press, or the free exercise of religion, or the right of peaceable assembly, without which speech would be unduly trammeled, or the right of one accused of crime to the benefit of counsel. In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicitintheconceptoforderedliberty,andthus,throughthe Fourteenth Amendment, become valid as against the states. —Justice Benjamin Cardozo, for the Court in Palko v. Connecticut (1937) It simply does not follow under any of our decisions or from the language of the First Amendment itself that because petitioner could not be criminally prosecuted by the Missouri state courts for the conduct in question, she may not therefore be expelled from the University of Missouri for the same conduct . A state university is an establishment for the purpose of educating the State’s young people, supported by the tax revenues of the State’s citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court’s opinion is quite unacceptable to me and I would suspect would have been equally unacceptable to the Framers of the First Amendment. This is indeed a case where the observa- Ordered Liberty [ 95 ] tion of a unanimous Court in Chaplinsky that “such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” applies with compelling force. —Justice William Rehnquist, dissenting in Papish v. Board of Curators of the University of Missouri (1973) Thomas Friedman Meets Albert Einstein “Honey, I think the world is flat.” Thomas Friedman, author and columnist for the New York Times, shared these words with his wife, and a book was born. In The World is Flat,1 Friedman argued persuasively that the story of the new century was not the terrorist attacks on the World Trade Center, not the wars in Afghanistan and Iraq, but the “flattening” of the earth—the exploding forces of globalization driven by changes in technology , business, and politics that have fueled the economies of India, China, and other nations, placing enormous stress on all our moral, social, political, and economic systems. In the new flat earth, countries, companies , communities, and individuals must all learn to do things differently. The earth may be flat, but the universe is curved, at least if you believe Albert Einstein. When Einstein began his contemplations on theoretical physics, the received understanding of the universe was that explained by Isaac Newton. Newton’s version posited the existence of both absolute time and absolute space. Time and space were inviolable and universal realities, independent of each another. Time, for Newton, existed in all spaces and in all places in perfect synchronization. Time was an omnipresent ticktock, ticktock, ticktock, existing always and everywhere. So too, for Newton, there existed absolute space, the place in which all things were contained. All things happened in space, as all things happened in time, and both were immutable and constant. Existing both in time and in space was matter.2 In Newton’s universe, matter behaved according to certain predictable and measurable laws of movement and mass, those solid, reliable, and even comforting explanations of how objects in our familiar time and our Ordered Liberty [ 96 ] familiar space behave. While objects in the real world of matter behaved in time and in space, they were not of time or of space. Matter—iron balls or waterfalls—might move across space and in time, but that physical stuff was not itself time, or itself space, and the realms of matter, time, and space were distinct and independent. The universe, as explained by Newton , was pleasingly logical, linear, and compartmentalized. Albert Einstein, in a brilliant supernova explosion of creative genius, reinvented our understanding of the...