About nine years ago, I sat down for my first class in law school: contracts.  I don’t remember the name of the first case that our professor had us read, but I remember what it was about: remedies.  The case was largely noteworthy for its discussion of the proper measure of “damages”—what us lawyers call the amount of money awarded to the victorious plaintiff.  The professor explained how one casebook author used to start his entire first chapter and the first few weeks of class discussing nothing but the proper measure of damages—that is, how much money the plaintiff gets.  Because in the end, that is how you demonstrate the value of the right in question: by providing an appropriate remedy when it is violated.

It is appropriate tonight to remember what happened thirteen years ago in Jasper, Texas.  It may be hard to read it, but the victim deserves your attention and remembrance.  From an article on one of the related trials:

In his closing argument, another prosecutor, Pat Hardy, described [William] King and his co-defendants as “three robed riders coming straight out of hell.” Noting that [James] Byrd’s dismembered body was left by the gate of an old black cemetery, Hardy said the three wanted “to show their defiance to God and Christianity and everything most people in this county stand for.”

Byrd, who was unemployed and living alone in a subsidized apartment, was walking home from a family gathering after midnight when he was picked up and driven to woods outside the city. There, he was beaten, then chained at the ankles and dragged behind a pickup truck for about three miles. In testimony Monday, a pathologist said Byrd was alive until his head and right arm were torn off by the jagged edge of a roadside culvert.

That testimony was crucial for the prosecution. The underlying felony of kidnapping is what made Byrd’s murder a death-penalty offense. For Byrd to have been kidnapped under Texas’s definition of the crime, he had to have been alive while being dragged.

Which is excellent legal thinking on the part of the prosecutors, but it also highlights a grisly fact: Byrd was alive and certainly aware as much of his body was ground like meat.  This was a cruel and torturous way to die.

Last night in Texas, one of those accomplices, Lawrence Russell Brewer was put to death for his role in this horror.  It is often wondered by death penalty opponents how people professing to believe in the sanctity of life can support the death penalty.  But what greater affirmation of the value of James Byrd’s life could there be, than to say that the price of his murder is the death of those killed them?  The value of the right is determined by the remedy for its violation.  This is as true in a simple breach of contract as it is in murder.

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Background: a few weeks back Time magazine published, as its cover story, an article by Richard Stengel on the Constituion.  Reading it, I was stunned to discover fourteen clear factual errors in his piece, and I have been on a bit of a crusade since then to force Time to either correct or retract the article.  And in the process I have been examining how other media outlets and organizations have treated Stengel.

Now, on the right we have the Federalist Society, a group of generally conservative scholars and other interested citizens devoted to the preservation of the Constitution.  So the left decided it needed an organization like this too, so someone formed the American Constitution Society (ACS), meant to be a liberal alternative to the Federalist Society.  (This shouldn’t be confused with the National Constitution Center, which by all appearances is an unrelated entity.)  They state on their website that:

The American Constitution Society for Law and Policy (ACS) promotes the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. The abiding principles are reflected in the vision of the Constitution’s framers and the wisdom of forward-looking leaders who have shaped our law throughout American history.

So they seem to care about the Constitution itself, or at least that is the implication.  So I found it curious that their website presented Richard Stengel’s piece on the Constitution without any criticism.  Go ahead, read their blog entry announcing Stengel’s piece.  It’s not long.  If they aren’t endorsing it (and it sure sounds like they are), they are definitely promoting it and without the slightest hint of criticism.

But even worse than that, they actually quote from this passage, again without a word of criticism:

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So as regular readers know, after finding fourteen clear factual errors in Richard Stengel’s June 23rd Time magazine cover story* on the Constitution, I have been on a crusade to embarrass the magazine until it corrects or retracts that story.  I have explained that I consider its publication to be a scandal, both because it appeared as the cover story and because who the author is:

The author is not only the Managing Editor for Time, but he spent two years as President and CEO of the National Constitution Center.  And even today, he works with the National Constitution Center’s Peter Jennings Project for Journalists and the Constitution, whose stated mission is “to help both professional journalists and students interested in journalism understand constitutional issues more deeply.”  That is right.  He is there to help journalists understand the Constitution better.

So I wrote an email to David Eisner, President and CEO of the National Constitution Center, asking (1) what Stengel’s role was in the Center, and (2) whether they had an official statement about this whole mess, particularly correcting Mr. Stengel’s inaccuracies.

Well, on Friday afternoon, I got this email in response:

from    David Eisner [email omitted]

to         edmd5.20.10@gmail.com

date     Fri, Jul 8, 2011 at 4:26 PM

subject Response to email

Dear Mr. Worthing,

Thank you for your email regarding Rick Stengel’s Time magazine cover article on the Constitution. As you’d imagine, the article has stirred up a lot of thoughts from people who care deeply about the Constitution, many critical and many supportive.  I’m sure you’re aware that the issues you raise go to the center of many of the most important current debates around how we view the Constitution.

We’re working to bring some of those thoughts and issues together and will share them on our blog http://blog.constitutioncenter.org in the coming days.

Best,

David E

David Eisner

President and CEO

National Constitution Center

“Whenever the people are well informed, they can be trusted with their own government.”

- Thomas Jefferson

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To give a quick review, on June 23, Richard Stengel wrote a cover story* for Time Magazine rife with factual errors.  On June 29, I published a piece here recording fourteen clear factual errors in that story.  I said at the time that I considered it a journalistic scandal that such an error-ridden piece appeared at Time Magazine as its cover story, and ever since I have been crusading to embarrass them into a correction.

But what is also embarrassing is that other media outlets have treated Mr. Stengel as though he was an expert on the Constitution.  Consider, for example, this blurp for a show on NPR entitled “Talk of the Nation” that aired on July 4:

In the fierce debates over health care, Libya, debt, gay marriage and other issues, Americans have been getting a lecture on the meaning of the Constitution and the intentions of its authors. Andrea Seabrook speaks with Richard Stengel of Time magazine and Yale law professor Akhil Amar about the political divide over the Constitution and how an 18th-century document applies in a 21st-century world. [emphasis added]

Now, I may not like Professor Amar personally, and I may vehemently disagree with him on many points, but I think it is fair to consider him an expert on the Constitution.

But as the other “expert,” we have Richard Stengel. Really, Andrea Seabrook?  You actually read that article, and thought he was an expert? Because it is important to stress that many of these errors are obvious to any lay person.  You don’t need three years of law school to know it is simply incorrect to say “[i]f the Constitution was intended to limit the federal government, it sure doesn’t say so.”  You only have to know that there is such a thing as the First Amendment or the Second.  Nor do you need complicated legal instruction to know that it is incorrect to say that the Constitution is not law—most people learn in elementary school that the Constitution is the supreme law of this land.  And one doesn’t need a particularly deep understanding of the Constitution to become concerned when one sees Stengel declare that “[i]n drafting the 14th Amendment, Congress … wanted to emancipate blacks and allow them to vote.”  I consider it fairly common knowledge that it was actually the Thirteenth Amendment that ended slavery, and the Fifteenth that outlawed racial discrimination in the franchise.  These errors should have been obvious to anyone reading Stengel’s piece, and utterly undermined any claim he could make to be an expert.

A reasonable radio host, doing due diligence, would have realized that they only had two options with Mr. Stengel.  She could either grill him about the serial inaccuracies in his article.  Or, she could drop him as a guest entirely and find a true expert on the Constitution to replace him.

And while they were at it, they could have added a conservative expert on the Constitution to balance the debate.

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About a week ago I published a post at Big Journalism outlining fourteen clear factual errors in Richard Stengel’s essay on the Constitution.

I said at the time that I considered it a journalistic scandal that such an error-ridden piece appeared in Time magazine, a once-respected publication.  For instance, in the article he stated remarkably that “[i]f the Constitution was intended to limit the federal government, it sure doesn’t say so.”  I have dubbed this scandal “Stengel-gate.”

I also considered it scandalous because of who the author, Richard Stengel, is:

The author is not only the Managing Editor for Time, but he spent two years as President and CEO of the National Constitution Center.  And even today, he works with the National Constitution Center’s Peter Jennings Project for Journalists and the Constitution, whose stated mission is “to help both professional journalists and students interested in journalism understand constitutional issues more deeply.”  That is right.  He is there to help journalists understand the Constitution better.

It has been about a week and the story has even appeared on Fox News.  And yet there is apparently no correction, no retraction of the story, or even a defense of it.

So frankly in an effort to keep the heat on, I decided to explore the other end of the scandal: what on earth was he doing working at something called the National Constitution Center?

I plan to spend several days discussing that issue and to kick it off, I decided to write a letter to its current President and CEO, the man holding the position that Richard Stengel once occupied: David Eisner.

So on Tuesday night, I wrote to him directly.  You can see the letter I wrote below the fold (the format is slightly altered by wordpress itself).

I do not know if he will respond or how he will respond.  But whatever his reaction is, even a non-response, will reflect on him and his organization.  And that in and of itself is noteworthy.

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