A clear grasp of constitutional principles

You must exercise the mind and body, or they will atrophy.

It is the same with constitutional rights. Too few have a strong constitutional constitution. Too many are too willing to be swept along by various movements or groups. The sovereign individual who speaks his mind, who takes a defiant stance is rare indeed.

But I recently came face to face with several such sovereigns.

When we four judges — myself, a state judge, a federal judge and a young lawyer — sat down to determine which of three topics we would pose to our seven panels of high school students facing off in the “We the People” civics competition at Bishop Gorman High School this past weekend, I immediately offered that I was partial to the first one, the one on the First Amendment, or the third one, that on the Fourth, but, of course, the first was foremost.

My fellow judges acquiesced.

When I read one of the questions we posed — “Although First Amendment rights are considered essential in a constitutional democracy, it is sometimes argued that these rights must be limited. Under what circumstances, if any, do you think limitations are justified?” — I had no doubt a couple of phrases would come up in most of the student teams’ four-minute prepared remarks. I was prepared to drill down and see just how thoroughly the teams understood what they’d been studying and how well they’d thought it through.

Sure enough, practically every team used one or both of the phrases: “clear and present danger” and/or “falsely shouting fire in a crowded theater.”

Both come from the 1919 opinion by much respected and even revered Justice Oliver Wendell Holmes in the case of Schenck v. U.S. The court upheld Charles Schenck’s conviction under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I draft.

The presentations were lively and well-researched, quoting pertinent passages from significant historic figures. They cited John Stuart Mill, Thomas Jefferson, Susan B. Anthony, Martin Luther King Jr., W.E.B. DuBois, Adlai Stevenson, the Pentagon Papers, the Seneca Falls Convention, Tinker v. Des Moines, Brown v. Board of Education.

In session after session, when I asked the students what it was Schenck had said or written that constituted a “clear and present danger” or was likely to cause panic like “falsely shouting fire in a crowded theater,” I usually got blank stares and confessions of ignorance.

Even when I explained on one or two occasions that Socialist Schenck’s pamphlets argued that conscription was tantamount to indentured servitude, which was barred by the 13th Amendment following the Civil War, the students were unswayed in their agreement with the august Holmes’ conclusions.

Then came three young ladies from the College of Southern Nevada High School, West.

They too mentioned the obligatory “clear and present danger” test in their opening remarks. So, when I broached my Schenck query I was surprised to hear one of the ladies spell out precisely what he had written, down to the number of pamphlets distributed.

When I asked if they agreed with the court’s opinion, one of them seemed to be about to accept Holmes’ stance when her two teammates jumped in and immediately disagreed, saying Schenck had every right to argue against such a law on a constitutional basis even in a time of war. He was debating the law, not causing insurrection.

Of course, I immediately gave them the highest marks on my scorecard. At the end of the program, when winners were selected, the team of Sarah Steelman, Rachel Dahl and Stephanie Laine won in that category. When their scores were combined with other teams from their school competing that day, CSNHS, West was the winner in Congressional District 1 and will advance to the state finals on Feb. 7 at the Regional Justice Center.

Basic High won in District 3 and up in Reno Reed High School carried District 2.

It was reassuring to hear students who had obviously studied the topic. But it was especially gratifying to find students who had the gumption to say their reasoning, their grasp of the principles are better than those of a Supreme Court justice. That’s what the First Amendment is for. That’s what makes our republic viable and strong.

A tip o’ the hat to all the schools competing and may they all live up to the promise they showed.

Thomas Mitchell is editor of the Review-Journal and writes on the role of the press. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. His blog can be found at lvrj.com/blogs/mitchell.

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