The U.S. Constitution was submitted and ratified in the name of "We the People," and, over the 23 decades it has been in existence, it has depended on a virtuous citizenry to make the government work. Popular sovereignty — vesting the ultimate authority for our government in the American people themselves — can only succeed if our people take the trouble to understand our economic, political, and cultural realities and make wise choices both for our leaders and our policies.
It was understood from the beginning that in order for a virtuous citizenry to be formed it must be an informed one, and thus the First Amendment to the Constitution guaranteed that Congress should make no law abridging the freedom of the press. Remarkably, it was also understood, since the first days of our republic, that with the press’s privilege came responsibilities, which was reflected in the early maxim that there were only two ways to destroy a republic, luxury and the licentiousness of the press.
What was meant by "licentiousness" at that time was a press available to be bought, and in the service of unscrupulous and mendacious politicians, and we have had our share since our founding. We are now in an era of misrepresentation, chicanery, misdirection, and what our president calls "fake news," the likes of which we have rarely seen.
How, then, to tell truth from falsehood, and how best to determine what course the polity should take? To sketch the parameters of our currently most pressing political problem, consider the ongoing controversy over Special Counsel Robert Mueller and his investigation of purported collusion between the Russians and the Trump campaign. The president (and the Russians) have staunchly maintained that there was no such collusion.
There is some evidence that Mrs. Clinton and her campaign cooked up the accusation in order to shift blame for her loss as a result of her ineptitude as a campaigner to a nefarious, autocratic foreign power.
The press, widely sympathetic to Mrs. Clinton and hostile to Mr. Trump, has trumpeted the collusion narrative, and so have Mrs. Clinton’s political allies. Last week Jerrold Nadler, a Democratic member of the U.S. House of Representatives, flatly declared "I predict that [the president’s] attacks on the FBI will grow louder and more brazen as the special counsel does his work, and the walls close in around the president, and evidence of his obstruction and other misdeeds becomes more apparent."
This was in response to Mr. Trump’s tweet, observing that as a result of the manipulations engineered by former FBI Director James B. Comey, and his subordinate Peter Strzok, to exonerate Mrs. Clinton from the charge that she mishandled classified information, "that the FBI’s “reputation is in Tatters — worst in History!"
Current FBI Director Christopher Wray, a Trump appointee, demurred, while stessing his belief to the contrary. But the charges that the purportedly apolitical investigative agency had been interfering in presidential politics cannot be ignored.
MSNBC's Mika Brezinski, like Mr. Nadler, promoted the narrative that Mr. Mueller was closing in on the president and his family, saying, "Knowing them, I think they’re shocked that the noose is tightening. I don’t know if they were arrogant or just incredibly un-self-aware and really dumb about what the job was about, how important it was, and how under the microscope every move you made would be.
"I think they just thought they’d go in there and flimflam and riff through it." She even added that, as a result of contacts with the Russians, "people might go to jail for the rest of their lives."
Only one side in this dispute, either the president or his critics, can be telling the truth. Although both, because of their particular political beliefs, may believe they are acting honestly and appropriately. Wishful thinking, or confirmation bias, as the behavioral economists call it, is a powerful motivator now in our political and cultural life.
If truth is to be served, then (and truth, after all, is the necessary foundation for virtue), the media need to do a better job sorting for political bias, or our governmental institutions, such as the special counsel in the case of the alleged Russian collusion, need speedily to resolve the issue.
The president’s lawyers claim that the special counsel’s investigation will be completed quickly in the new year. The president’s enemies dispute this. We'll soon know who gets that right. In the meantime, in the midst of this period of red-hot political disagreement, is it asking too much for the press more rigorously to eschew one-sided analysis and to check for its own confirmation bias?
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.
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