What is the connection between India and the Federal Constitutional Convention of 1787? A connoisseur of constitutional trivia would answer, “Warren Hastings,” explaining that an account of the impeachment of Hastings in 1787 by the House of Commons for plundering India came to the framers’ attention late in their proceedings and offered guidance for their own impeachment clauses. Warren Hastings, however, is not the appropriate answer. The connection between India and the convention is that both have recently been the subjects of widely acclaimed, though very different, television series, one of which has persuaded many observers that Americans have, at last, attained the proficiency of the British in using television to present historical events.
But unlike The Jewel in the Crown , a tumultuous historical drama of war and de-colonization, The Constitution: That Delicate Balance is an oversized panel show, an hour’s conversation among twenty citizens in business suits unrelieved by murders, police chases, or seductions. It is, in other words, what the media disdainfully call “talking heads.” And the heads talk about a “heavy” topic, the Constitution, which, according to conventional wisdom, empties a hall faster than a sweep by the A-Team. And yet the series produces electricity, tension, humor, and stimulation, has secured the allegiance of a large audience, and has obtained the patronage of more than two hundred colleges, which are using it as a “telecourse.” Why does it succeed?
It succeeds, first, because of the skill of its director, Fred W. Friendly, a former president of CBS News, whose experience in producing good television dates back to a partnership with Edward R. Murrow in the early 1950s. Second, the programs focus on constitutional topics of current interest and, in many cases, ones that cause anguish. Bankruptcy and the regulation of commerce are out; abortion, school prayer, affirmative action and reverse discrimination, gun control, the right to die, the war powers act, the insanity defense, and the rights and responsibilities of the press are in. Third, the participants in each show are celebrities—principally lawyers, judges, politicians, and journalists—whose presence generates interest. Among those in the first show, for example, are Gerald Ford, Edmund Muskie, the presidential counselors Brent Scowcroft and Philip Buchen, the Watergate adversaries Archibald Cox and James St. Clair, and the columnist Tom Wicker. All are adversarial and authoritative. The viewer is confident, for example, that when Dan Rather and former CIA director James Schlesinger speak on the media’s publication of confidential government documents, he should listen.
Finally, the series succeeds because of its distinctive format, conceived by Friendly during the 1970s for his Media and Society Seminars while he was a professor at the Graduate School of Journalism at Columbia University. Each episode is presented as a hypothetical legal case in which the participants assume various roles. The cases are moderated by accomplished law school professors who employ the Socratic method, often to the exquisite discomfort of the celebrities. What viewer would not enjoy seeing prominent judges and journalists, in a reversal of their usual roles, squirming under pointed questioning? Who could resist listening to professional inquisitors as they coax even wary defense attornies into reassessing a “creepy, crawling crud” of a client as a “nice fella” when it is revealed that the man can afford a $100,000 fee? But there was no meanness in the manipulation of the participants, the moderators’ sole goal being to draw out all the implications and dimensions of the topics under consideration. Finally, the late Supreme Court Justice Potter Stewart joined Friendly at various times during each episode to explain points of law and past decisions of the Court. A pleasing, reassuring personality, Justice Stewart was a bonus for the viewers.
The purpose of the programs is not to indoctrinate but to force the viewer to think about the Constitution. Nevertheless, there is advocacy (often implicit) in the series, and at least three significant themes inform it.
One is the conviction that the Constitution is a national blessing. It is not, however, represented as perfect, and episode three, “Nomination, Election, and Succession of the President,” exposes what the producers perceive to be a major flaw, a “disaster waiting to happen”—the possibility that a presidential candidate could win by popular majority but lose in the electoral college. In general, however, the Constitution is seen as a great good, a view so widely held today that we would do well to remember that earlier generations of Americans did not share it and that future generations may not. Consider Friendly’s missions around the country as a self-described Willy Loman of the Constitution, distributing little blue-bound copies of the document and urging that it be placed in every hotel room and in every living room. Compare William Lloyd Garrison’s travels in the 185Os, during which he ostentatiously burned copies of the Constitution, denouncing it as a “bloody compromise” with slavery that permitted the hateful institution.
The second significant theme in the series is that the Constitution is a “living document,” that its meaning is not fixed but changes with time and circumstance, and that its clauses are capable, as Justice Stewart explains in episode twelve, of “taking on contemporary content.” The Constitution of this series is a malleable document in a constant state of evolution. Critics and viewers who were puzzled by this fluidity may have been expecting a Constitution of simplicity and certitude.
The third significant theme is the equation of the Constitution with the Bill of Rights, a coupling that suggested to one commentator that the title of the series should be The Living Theater of the Bill of Rights . The delicate balance in the title indicates the producers’ conviction that the burden of the Constitution on those who apply it is for them to strike a balance between society’s interests and the protections afforded individuals by the Bill of Rights. The Constitution, Friendly observes in the last episode of the series, “seems relevant on some things, the Bill of Rights particularly, but not so relevant on others.”
This concern for relevance, this sensitivity to those aspects of the Constitution that are conspicuous at the present moment, is the one blemish on the series. To seek relevance is to renounce the historical perspective, a costly decision for a series that was intended to commemorate the bicentennial of the creation of the Constitution. A distorted and diminished understanding of the document results. Crucial though we consider the Bill of Rights today, for instance, it was irrelevant to the men of the Constitutional Convention. In describing the reaction to Elbridge Gerry’s motion on September 12, 1787, that the convention draft such a bill, a motion that was summarily rejected ten states to none, James Wilson of Pennsylvania explained: a bill of rights “never struck the minds of any member in the late convention till, I believe, within three days [actually five] of the dissolution of the body, and even then of so little account was the idea that it passed off in a short conversation.” The convention, Wilson continued, considered a bill of rights “neither an essential nor a necessary instrument in framing a system of government, since liberty may exist and be as well secured without it.”
The drafters of the Constitution were not indifferent to the rights of their fellow citizens; solicitude for them yielded for the moment, however, to what they regarded as the higher priority of saving the country from the dissolution of its government. As Madison warned before the convention, the threat to the nation was anarchy, not tyranny. The mission of the convention was to construct a government that could govern the American people, that could stanch the hemorrhaging of national authority and competence under the Articles of Confederation. Hence, it concentrated on the frame and structure of government, the original meaning of the word constitution . The framers would be surprised, and some would be pleased, by the vigor and sweep with which today’s Supreme Court applies the Bill of Rights, but they would be astonished to learn that litigation over the Bill of Rights could be considered the essence of the Constitution.
To understand and appreciate the Constitution and its framers, we should focus, as they did, on the architecture of government. We would welcome—indeed, we need—a television series recreating the action at the Constitutional Convention, which would explain by letting the debates speak through talented performers why we have a government of separated powers, a bicameral legislature, houses of the legislature based on different principles of representation, an electoral college, a Supreme Court —which would explain, in short, what our government is and why it is.
The country should challenge this same group of television producers to develop such a series. The enthusiasm created by The Constitution: That Delicate Balance should not tempt the producers to stamp out more episodes in this successful, law-case mold but to recreate the making of the Constitution. The aim of such a new series would not be to prove that Americans can match the British in making historical dramas but rather to increase public understanding of the Constitution by presenting it in the fullness of its historical context and liberating it from the arcane world of lawyers, judges, and courtrooms.
If it is possible to speak of a jewel in the crown of a republic, that jewel is our Constitution. This series has justly celebrated it. Now it needs more burnishing—but with different strokes.