Copyright 1995 by D.H. Myers. All rights reserved. Do not use without permission.
Gerhard Casper and Jack Peltason both had something in common which the selection committees at both Stanford and the University of California seemed to prefer at the time of their appointments around 1992: they were both consitutional law scholars. Unlike the former presidents of Stanford and the University of California, Donald Kennedy and David Gardner, who were both scientists, these two new presidents appeared to symbolize a different flavor of legitimation for a university system plagued with legal problems and student unrest over multiculturalism.
The Casper appointment was vigorously supported by Professor Gerald Gunther of the Stanford, who is author of the most often used textbook in U.S. law schools on constitutional law.
Both Peltason and Casper were also "white males", in contrast to a nationwide trend of installing minority and women candidates into the top university position, and therefore they were less vulnerable to attack by activist campus conservatives who had been consistently against selection predicated upon the ideology of multiculturalism.
It is an irony that today's legitimacy issues involving selection in American education and employment are historically represented in the past cultures which Mr. Casper and Mr. Gunther were born into. If their ethnic and national origins had been taken into account during the selection process, this may have added a layer of "political correctness" to Mr. Casper's appointment.
Mr. Gunther was born in 1927 Germany, under what is historically referred to as the Weimar Republic. His parents fled to America several years later in response to the social unrests which led to the persecution and killings of millions of European Jews and the Second World War. Mr. Casper was born in Hitler Germany in 1937, in which the Weimar Constitution was technically in force, and emigrated to America in the mid 1950's after tasting the resources of American universities undamaged by the war.
It is further ironic that both Professors Gunther and Casper were too young to understand constitutional law of the Weimar Consitution in their childhoods, and how it would compare with the American Constitution. But their scholarly influence has influenced me to probe for some historical answers which have seemed to escape attention of the constitutional traditions which their common ancestral culture represents.
The Weimar Constitution of 1919 was hastily enacted as an aftermath of the First World War. Its terms were apparently designed to appease the international community at that time which had defeated Germany. Ideologically, it was a mixed breed which attempted, though imperfectly, to draw from the most liberal elements of other Western constitutions.
Before the First World War, the rights among German citizenry, and German cultural direction, was to no small extent determined by social rank under a system of monarchy and nobility like in other European powers. But the anti-monarchist, ideological influence of the Americans from the west and the new Russian Revolution from the east placed the monarchal German empire in a pressure cooker towards the end of the Great War. The Weimar Constitution must have reflected this:
All Germans are equal before the law.
In principle men and women have the same civil rights and duties...
Public-legal privileges or disadvantages of birth or of rank are to be
abolished
Titles of nobility shall be regarded merely as part of the name, and may no
longer be bestowed.
Titles may only be bestowed when they indicate an office or profession;
academic degrees are not affected hereby;
Orders and decorations may not
be conferred by the State.
No German may accept titles or orders from a foreign government...
Every German has the right, within the limits of the general laws, to express
his opinions freely in speech, in writing, in print, in picture form or in any
other way. No conditions of work or employment may detract from this right
and no disadvantage may accrue to him from any person for making use of this
right..."
The drafting of the Weimar Constitution was ordered by the panicky Social Democrats (socialist-oriented opponents of the Kaiser), led by Friedrich Ebert who had taken power after the German monarchy abdicated under pressure near the end of the war. Its primary author was Hugo Preuss, a Jewish-German constitutional law professor of that era, who had been commissioned by the Ebert government to draft it. Its exemption of academic titles from its nobility clause may have been influenced by the fact that the American President Woodrow Wilson had been a strong, former president of Princeton, and it may have been advantageous at that time for the Germans to "play up" as much as possible to the Americans at the peace table.
In contrast to the German experience, the American Constitution, which also attempted to deal with potential problems of domestic elitism, peremptorily states that neither the United States or any State has the power to grant "titles of nobility", without, however, stating any specific type of title, and there is nothing in this clause which textually prohibits private institutions from conferring titles, degrees, or the like. However, the original intent of the framers was likely that they didn't want citizens of the republic to have the legal power to push each other around, and thereby create a system of slavery, because someone happened to have a title, and someone didn't.
In 1972, Warren E. Burger, Chief Justice of the United States, applied the principles of nobility-clause-like jurisprudence to a racial discrimination case, Griggs v. Duke Power, in which certain job applicants had been denied employment because others had higher test scores, grades, and higher levels of academic completion:
"The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress (in the particular piece of federal legislation invoked in the case) has mandated the commonsense proposition that they are not to become the masters of reality."
Justice Burger's ratings presumably went down, of course, among academic interest groups after that opinion. He was later (if I remember correctly) discredited by even the law clerks who he had generously hired, who were supposed to have been "top" students. However, this passage of the Griggs opinion is one of those rare articulations which will immortalize both Justice Burger and the U.S. Supreme Court in history.
One court opinion back in 1872 would support the use of nobility-clause jurisprudence to treat the distortionary influence of academic and credentialing and licensing, and vindicate Justice Burger's insights:
"...To confer a title of nobility, is to nominate to an order a person to whom privileges are granted at the expense of the rest of the people. It is not necessarily hereditary, and the objection to it arises more from the privileges supposed to be attached, than to the otherwise empty title or order..." - Horst v. Moses, 48 Ala. 129,142 (1872)
In selecting Mr. Casper for Stanford's head post, and therefore one of academia's most prestigious posts, there was an institutional predisposition which, as an almost metaphysical coincidence, tended to favor the Weimar consitutional values which are more "user friendly" (or, "abuser friendly") to academic interest groups than the American constitution could be made to be.
As an expert in comparative constitutionalism, Mr. Casper would be one of the first people to recognize any dissonance bytween the constitution of a polity and the dominant enforced value systems of the underpinning society, such as the official ideology of degree requirements and licensing requirements. For a constitutional law scholar like Professor Gunther, or the many others in American law schools, they could be made to wonder whether they have been teaching the American Constitution as subordinate to the cultural values expressed in the Weimar Constitution, since degree requirements and licensing requirements, which at best can only be marginally legitimized, have become the fascist rule of selection and resource allocation - of, by, and for their school administrators, for their students, their alums, and their legal profession.