COVERING THE CONSTITUTION AND ITS CHANGES

By: Nat Hentoff Hentoff Wonders Where The Press Will Be





Having been asked to speak at the New York University and Columbia University graduate schools of journalism, I first asked the students - as I do at high schools - how much they knew about the Bill of Rights? With very few exceptions, their eyes glazed over when I brought up the Fourth Amendment (protections against government search and seizure) and the Fifth Amendment (everyone's right to due process of law, and what does that mean?).



Everyone knew one clause of the First Amendment: "There shall be no law ... abridging the freedom ... of the press.'' But another clause in the First Amendment prohibits laws "respecting an establishment of religion.'' That clause is at the core of an increasingly fierce national debate on whether public tax money should go to religious schools through vouchers. This controversy will be before the U.S. Supreme Court, possibly next term. Most of the journalism students went blank when confronted with the Establishment Clause.



I pointed out that any stories they would cover - from housing and family courts to campaign financing and affirmative action - require a working and continuing knowledge of both the federal and state constitutions.



These prospective journalists did not know, for example, that a state constitution may provide greater protections for individual rights than the federal Constitution. No state can provide lesser protections than the federal Constitution as interpreted by the Supreme Court. But, in a recent example, the Florida Supreme Court prohibited the execution of a man who was 17 when he committed a murder. This would have violated the "cruel and unusual punishment'' clause of Florida's Constitution - even though the U.S. Supreme Court ruled in 1989 that executing 16- and 17-year-olds does not violate the federal Constitution.



As for publicly financed vouchers for religious schools, even if the Supreme Court decides that they're constitutional - provided the money first goes to the parents rather than directly to the parochial schools - the state constitutions of New York and Maine explicitly forbid even indirect transfer of public tax money to religious schools.



The press as a whole must be aware of constitutional developments, because it is the public's primary source of information about U.S. Supreme Court decisions that affect millions of Americans, sometimes for generations. The TV networks used to have full-time, experienced Supreme Court reporters. They're gone, and now the networks cover, briefly, only a few high-visibility cases.



People with access to The New York Times, The Washington Post, the Chicago Tribune, the Los Angeles Times, and a number of other newspapers can find out what the court is doing, and why. Some of the wire services - The Associated Press, for example - also cover the court reasonably well.



However, I've been in cities, eager to find out how an important case was decided, and the local papers had cut wire-service reports for space, leaving the reader with more questions than answers. Those answers won't be coming from all-news radio or the cable TV channels.



Even in those cities where press coverage of "the living Constitution'' - as Chief Justice John Marshall called it, to show that the words are not graven in stone - is adequate, something vital is missing.



U.S. Supreme Court Justice William Brennan once said to me that even when people do get to know the decisions of the high court, that information is incomplete, unless they also know how the case began on its way to the court - and who the principals of the case are.



Brennan emphasized that if the press paid attention, from the start, to cases that were likely to change the lives of many Americans, the ultimate decisions would mean more - and would be a lot clearer - to readers and viewers.



Reporters and editors have a working model in Peter Irons' "The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court'' (available in Penguin paperback). In this book, seminal decisions come alive about libel, refusals to salute the flag in school, sodomy laws, abortion, school prayer, unequal financing of public schools, civil rights, and other vivid

illuminations of "the rule of law.'' There are interviews with the people, often with scant resources, who fought their way to the court; accounts of the battles among the justices themselves; and the effects of the decisions - not only on the litigants but on all of us.



U.S. Supreme Court Justice Anthony Kennedy warns that "the Constitution needs renewal and understanding each generation, or else it's not going to last.'' That warning should have particular impact on the press, for how else will the public understand when its rights are strengthened - or weakened?



Journalism professors, please copy.





Nat Hentoff is a writer for The Village Voice. His "Getting It Right" column appears monthly in E&P.





Copyright 2000, Editor & Publisher.