Journalist and legal commentator Jeffrey Rosen is President and CEO of the National Constitution Center (NCC) in Philadelphia and led the development of the John Templeton Foundation-funded Interactive Constitution. Rosen is also a professor at The George Washington University Law School and a contributing writer for The Atlantic.
He spoke recently with Nate Barksdale, lead writer for the John Templeton Foundation’s Possibilities newsletter, about how the NCC has responded and adapted to the COVID-19 era, as well as the big questions being raised by the personal and collective challenges of the pandemic.
How is the COVID-19 crisis affecting the National Constitution Center’s work?
As soon as the crisis began, we immediately embraced the challenge and opportunities of providing remote online educational opportunities, and we’ve found an extraordinarily responsive and large audience. We’re reaching learners of all ages across America we weren’t reaching before.
Before the crisis, our mission was to distribute our educational material focused on the Interactive Constitution, which the John Templeton Foundation helped us build, both in person and remotely. We committed to bringing in tens of thousands of students from the Philadelphia area for a physical learning experience and also to connect tens of thousands of students online for remote learning. A week after the building closed in March we launched a series of live online classes about the Constitution for middle, high school, and college students. These are offered every Wednesday, Thursday, and Friday at noon and 1 pm. I’m teaching high school and college classes along with Kerry Sautner, our dynamic Chief Learning Officer, who conceived of the initiative.
It’s been thrilling to see how many students these live classes have reached. As of May 15, they’ve reached more than 30,000 students and teachers since their launch. A session with Ken Burns about core American ideals reached 2,000 students. Stefanie Sanford, who leads advocacy initiatives at the College Board, was giving Supreme Court cases to the AP History classes last Friday, reaching nearly 1,500 students. There’s something extremely interactive and meaningful about talking to students and engaging in questions and answers on Zoom. The students are attentive, and they tell you exactly what they think about constitutional arguments and Supreme Court opinions. One student said, “I’m only 12, I’m not sure I can read the dissent!” But his colleagues encouraged him to do so, and he said that he found it meaningful. And these are audiences we never imagined we could reach before.
We’re also finding a tremendous increase in attention to our digital products more generally. Since March 15, there’s been a 35 percent increase in website usage. People are spending more time on the site — on average 15 more minutes — and they are engaging more deeply. For the Interactive Constitution, which is the crown jewel of our educational offerings, page views are up 30 percent. The crisis has shown that there’s tremendous interest in questions like, What is the president’s authority? What’s the authority of the state governors? What are challenges to civil liberties in the age of the crisis? It’s really heartening to see how citizens are tuning into this balanced, trusted content.
Is this experience going to change what the NCC does in a way that outlasts the current crisis?
The COVID-19 initiative has been so successful it’s transforming the way that we think about online education. We’re committed to continuing these live classes even after we reopen in the summer and fall. We will offer them all next year for middle school, high school, and college students to sign on for free or take for credit if schools want to give credit for these classes. It’s allowed us to add to our educational offerings, including live classes where an NCC scholar can teach directly to hundreds or thousands of students in real time.
It’s an opportunity to extend our reach and think about our educational efforts not only as a one-day experience but essentially a yearlong course about all aspects of the Constitution that will be guided by NCC scholars. We’ve also rethought our public programs. The Foundation has supported a wide range of public programs for adults, uniting leading liberal and conservative scholars and thought leaders to discuss ideas related to history and the Constitution. In the past we’d offered these physically at the NCC and in traveling town halls. We’ve now put them online and on Zoom. On April 20 for a debate on the electoral college we had more than 750 citizens joining for a noon discussion. Our program about George Washington’s constitutional legacy had about 650 live viewers. We launched an exciting initiative with C-SPAN after the first live Supreme Court oral arguments in history. After all six days of arguments, I led a live conversation on C-SPAN with advocates and scholars on both sides unpacking the Supreme Court arguments we’d just heard. As with the classroom outreach, we’re going to keep doing our town halls online next year, while of course continuing to do them in person, in Philadelphia and around the country.
What ‘Big Questions’ do you see being raised by the current pandemic?
We’ve already done five or six podcasts on COVID-19 and the Constitution. One recent one we recorded asks, “What are the president’s powers in the times of the crisis?” President Trump previously said he had “total authority” to open or close the states. That claim was questioned by scholars and public officials on both sides of the political spectrum. We had leading liberal and conservative authorities on executive power to discuss how even Alexander Hamilton — the founder who was most pro-executive power — believed that there were limits on the president’s power. In some ways he said the president’s powers were less than that of the British King or even the governor of New York.
We’ve also explored the question of infringement on religious liberty. A pastor in Florida recently sued claiming the quarantine has infringed his rights of religion, freedom of assembly, and the rights of his congregants. Supreme Court precedents do suggest governments have broad power to limit public gatherings in the face of pandemics as long as the restrictions are neutral with regard to content and limited in duration, and doesn’t single out religion for special disfavor. But there’s a countervailing line of cases that says that religiously scrupulous people should get exemptions from neutral laws of general applicability. The Supreme Court explored whether the “ministerial exception” to workplace laws should be expanded in one of its recent oral arguments. We had a great debate after the argument about where that balance should be struck.
There are also cases raised by gun shops that want to reopen, saying that Second Amendment rights are being burdened. It was striking to see how broadly the Supreme Court has construed police powers of the states, from closing businesses in the face of pandemics and authorizing mandatory vaccinations at the turn of the last century. At least when it comes to the states, the powers do seem to be quite broad. The federal government hasn’t attempted to impose national quarantines in the past, so that’s pretty well untested. The lesson there is that the president has few inherent emergency powers on his own — they’re delegated from Congress. One of the exciting things about these podcasts and educational programs is that as the host, I learn from them along with our listeners. It’s hard to have an informed opinion about any of these questions until you listen to the best arguments on both sides. And there generally are good arguments on both sides.
Are there moments in American history that seem particularly relevant to the constitutional questions raised by COVID-19?
People tend to start with the great pandemics and public health crises of the past. There was a yellow fever epidemic in the late 1790s that led to the states issuing emergency powers that the federal government supported and the Supreme Court endorsed. Another yellow fever epidemic in 1878 led to similar precedents, as did the 1918 Spanish flu epidemic.
There are also the great cases involving conflicts between the president and state authorities. President Trump recently has been encouraging protests against governors who want to keep their states closed. During the 1790s Whiskey Rebellion, President Washington led an army of militias to put down revolts against a hated whiskey tax. President Jackson denied South Carolina’s power to nullify the 1828 “Tariff of Abominations.” There are scholars who say it seems unusual to find a president siding with protesters against state governors, but we’ll keep digging.
Then there’s the whole question of the constitutionality of the institutions that arose in the wake of the financial panics of 1913 and 1929. During the Progressive Era, the Federal Reserve, the Federal Trade Commission, and other entities were all created by the Wilson administration in response to that financial panic. And of course we had the New Deal.
There’s also a vigorous debate about limits about the president’s power to fire the heads of independent agencies. The Supreme Court is going to decide a hugely important case involving the Consumer Protection Bureau this term. Those questions tend to pit what constitutional scholars call executive power maximalists against executive power minimalists. The maximalists say the president should have the power to fire any official he appoints, while minimalists say Congress should be able to set up quasi-independent agencies whose heads are insulated from being fired by the President. It’s very clarifying to have these debates in constitutional terms rather than partisan terms. They affect presidents of both parties — the Supreme Court pushed back against President Obama for trying to make recess appointments during his presidency in ways that are relevant to President Trump’s threats to adjourn Congress if they refuse to confirm his nominees. When you look at all of these conflicts historically and through a constitutional lens, you find that presidents of both parties have asserted powers that courts have both questioned and upheld.
What kinds of reading you’re finding most engaging and worth sharing during a time of disruption and quarantine?
Since the crisis I’ve been immersing myself in the original understanding of the Founders’ conception of the pursuit of happiness. I’ve learned that, far from the viewing happiness as the pursuit of pleasure, they were influenced by the stoic notion of happiness as self-mastery. They focused on being good rather than feeling good. Jefferson said the ideas of the Declaration of Independence came from Aristotle and Cicero as well as Enlightenment thinkers. He had by his side James Wilson’s pamphlet on legislative authority, and Wilson frequently cited Cicero and the Stoics. George Mason said that the purpose of government was to promote happiness and the way to achieve happiness was to practice virtue — as defined by the four classical cardinal virtues of wisdom, justice, courage, and temperance: “Virtue may be defined as a habit of mind in harmony with reason and the order of nature.”
I’ve been getting up every morning and reading the ancient sources — Cicero’s Disputations, Horace’s poetry, Seneca’s letters. I’ve found it extraordinarily meaningful to practice the habits of self-mastery which the Stoic philosophers recommend. Their idea was that we should use our powers of reason to master unreasonable passions such as grief, anger, and fear. By focusing on the only thing we can control, which is our thoughts, we can welcome and accept fate — including tragedy, pandemics and natural disasters — without disturbing our tranquility. And by avoiding perturbations of the mind, we can achieve the lasting tranquility that leads to happiness. It’s remarkable to see how unanimous the Framers were in both embracing and practicing these habits of virtue defined as self-mastery. Benjamin Franklin had a system of thirteen virtues that he recommended that all citizens practice, all derived from classical sources, including Pythagoras’sGolden Rule, — temperance, moderation, humility, and so forth — to achieve a true and lasting happiness. Especially in times of pandemic when there’s tragedy and grief around us and so little that we can control, the Stoic wisdom about how happiness is ultimately up to our mental powers of self-discipline and spiritual self-mastery is extremely consoling and meaningful.
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