The Constitution at the Movies
The United States Constitution in Film: Part of Our National Culture. Eric T. Kasper and Quentin D. Vieregge. Lanham, MD. Lexington Books, 2018.
In his opinion in the case of United States v. Syufy Enterprises, the 9th Circuit Court of Appeals Judge Kozinski worked into his text some 200 movie references. Yet it would be hard to say all that movie knowledge improved his behavior as a citizen. This is the question that comes to mind upon reading Eric Kasper and Quentin Vieregge’s fine book on the portrayal of the US Constitution in film while reflecting on the relevant case law. While they cast no dispersions on the originalist project to understand the Constitution as it was originally intended, they point out that many judges are not originalists. Instead, these judges understand the Constitution in terms of changing cultural circumstances and as they put it, “films are one of these cultural phenomena” (269). Thus, they have made a real contribution in illustrating how films may have influenced the Courts and how the Courts may have influenced the films. They have also created an excellent source text for anyone who wants to teach a course on the US Constitution and film. Still, upon considering some of the political imbalances in film shown throughout the book, the question arises, should there be such courses? In any case, this book provides awareness of these difficulties and could be used to balance and correct such problems.
The structure of the book follows the US Constitution in beginning with chapters on the films that deal with Congress, the Presidency, and the Supreme Courts. There are no chapters on the relationship between the states and the national government, amending the Constitution (although Lincoln is discussed on this topic), treaties and the supremacy clause, or the ratification of the Constitution—presumably because there aren’t that many films on these articles. Which is some sense is fine because these topics would obviously make for very boring films, but this is not fine for educational purposes because they are important topics. There are lots of films on the topics brought up in the bill of rights and so there are chapters on religion, speech and the press, and the right to keep and bear arms. Hollywood loves crime dramas and this leads to three chapters involving crime including crime suspects against the police, the criminally accused in court, and the rights of the convicted. The number of movies spent on the cinematic subject of first amendment and crime seems to illustrate why when most students think of the Constitution, they think of the bill of rights. This is followed by chapters on the 14th amendment including equal protection of the law and the right to privacy. The last substantive chapter is on the right to vote followed by some reflection on the movies and the Constitution.
The chapters on the major branches of the US government show that the movies have depicted the branches differently as historical circumstances changed and that they have not portrayed the branches as co-equals. A film like Mr. Smith Goes to Washington turns out to be fairly accurate and instructional about Congress by showing how a governor can fill a vacancy in the US Senate, or illustrating how each chamber controls its membership and makes its own rules with things like the filibuster and shows the process by which bills become law. More recent films like Charlie Wilson’s War reflect the darker, more recent view of politics. Kasper and Vieregge’s final judgment on Congress in the films is, “contemporary films about Congress and its constitutional powers try to show us that good can still be achieved, but in the process, they also tend to portray the unseemly underbelly of what is largely depicted as a corrupt institution” (26).
The movies seem to mirror the changes in the case law on executive power, which ebb and flow depending on whether or not there is a crisis. Yet, the authors find a general trend favoring a strong, independent executive. Again, consider whether the leader or the errand boy is more cinematic. The authors describe the tendency for a heroic unitary executive, “After 9/11 divisions on this issue have deepened within Hollywood, although the president tends to be depicted as having a single-handed ability to effect change, even among directors who question how much power the president should exercise under the Constitution” (50). Harrison Ford’s portrayal of Jack Ryan in Clear and Present Danger standing up to a President who simply has been given too much power, is no match for Harrison Ford’s President Marshall in Air Force One who retakes the plane from terrorists completely by himself.
The Courts turn out to be the least cinematic branch. As Kasper and Vieregge describe it, “Even if we consider all of the federal courts, there are far fewer films than is the case for either the president or Congress” (55). However, the Courts frequently play a role in many of the films discussed in the rights sections of the book where the need for an independent judiciary against a potentially tyrannical majority is discussed including movies like The Magnificent Yankee, The Pelican Brief, The People v. Larry Flynt, and Amistad. They do give a counter example to this trend in the movies with A Civil Action a film that is described as showing “ the potential dangers of judicial independence: a lack of accountability” (63). One concern about the volume is that it includes, without separation, films that are complete fiction, films based on historical events where great liberties have been taken, accurate historical depictions, and films that are documentaries. If one is considering the Constitution in these various contexts it matters whether one is talking about an actual occurrence, like the conscience protection case of Muhammad Ali, or a fictional court martial case, like A Few Good Men. It might have improved the volume to have simply focused on fiction or had separate sections for the types of movies.
The chapter on “The Freedom of and from Religion” contains this summary statement, “The films in this chapter speak to this tension between finding inspiration in religion for social and governmental action and foreseeing the dangers that occur when religion becomes too enmeshed with civil authority” (70). Many of the films used to illustrate the religiosity of the American people seem to be epics rooted in the biblical ancient world such as Quo Vadis, The Ten Commandments, and Ben-Hur. Whereas the films concerned with the dangers of religion are set in America including, Inherit the Wind, Bob Roberts, or America-like places including Pleasantville and The Handmaid’s Tale.
Perhaps this trend towards viewing America as a secular country is what the authors mean when they discuss Reagan’s description of America as a ‘shining city upon a hill’, saying, “Though the Constitution clearly prohibits the establishment of religion or the repression of its exercise, President Reagan’s harkening back to Winthrop exemplifies a still present comfort for thinking of this country as distinctly religious” (70). While Reagan may have been from the movies, the authors here suggest he’s no longer what’s produced in Hollywood. Kasper and Vieregge are critical of the treatment of religious minorities in Employment Division v. Smith where the Court abandoned the compelling interest test for simply a rational basis where a neutral law of general applicability is involved. They say, “The practical effect of the decision though, was to provide less protection for minority religions, as majority religions are better able to pass laws that are both neutral and that protect their religion’s interest. In some ways, then it is fitting that Bob Roberts and The Handmaid’s Tale were released at this time, as they express themes of a similar nature” (80). Still, it seems one should not hold their breath waiting for a Hollywood movie of recent cases understood in light of the Religious Freedom Restoration Act that was passed in response to the Employment Division case. There will be no Hobby Lobby movie or even Little Sisters of the Poor, the movie. As the authors describe on page 232, the film industry, at least in Mona Lisa Smile, sees “the use of birth control as an uncontested good.”
The book shows the Freedom of Speech and Press greatly expanding during the twentieth and twenty-first centuries. The films seem to mirror this expansion as the authors tell it, “over time, the general tenor of these films has developed in more recent decades into one in which expressive rights of the press and the public are generally lauded” (91). Earlier on the same page, it is conceded that stories centering on freedom of the press are more likely to become movies “Of these two rights, the one that has been most celebrated on film has been the freedom of the press, perhaps because such a story is easier to tell”(91). The movies are sometimes critical of the press like in Citizen Kane or Network, but there are plenty of pro-media films like Good Morning, Vietnam or All the President’s Men. Films have also reflected on the conflict between individual and society’s standards of decency like Private Parts or The People vs. Larry Flynt. The latter film’s philosophic stance is described, “Flynt is portrayed as the sacred guardian of our freedoms in the movie. Early in the film, there is a scene that depicts Flynt not only as a sexual provocateur but also a patriotic defender of American rights who wallows in his bacchanalian depravity” (104).
There are more subtle films on the topic such as Dirty Pictures, which deals “with a more complicated relationship between those who oppose Robert Mapplethorpe’s sexually explicit images in a Cincinnati museum art show and those who defend them at least on principle” (104). The end of the chapter points to an interesting question that could have been further developed, “Hollywood today probably promotes the freedoms of speech and press, in part, because it is promoting filmmakers’ own craft” (115). As the authors point out, since the 1952 case of Joseph Burstyn, Inc v. Wilson, the movies have been protected by the First Amendment. But before that, under the old case of Mutual Film Corporation v. Industrial Commission of Ohio, states, through their police powers, could censor films. In response, the industry began to regulate itself with things like the Hays Code. So there was a time when filmmakers thought they could promote their craft by restraining themselves with the community’s standards.
This self-restraint might have included depictions of violence, especially gun violence, which the authors point out are everywhere in the movies. “Virtually every action film—as well as many comedies, romances, and dramas—use guns because they are so ubiquitous in our culture” (120). Even the anti-gun films turn out to be pro-gun, because frequently in the films only a good but reluctant man with a gun can stop a bad fervent gun user. The authors trace a path of case law showing that states had traditional police powers to regulate firearm ownership particularly because the Courts understood it as a corporate right involving well-regulated militias. But Hollywood continuously seemed to glorify guns from Clint Eastwood’s Dirty Harry in 1971 to Clint Eastwood’s portrayal of Kowlaski in Gran Torino in 2008. “Perhaps it was people like Walt Kowalski that the Supreme Court had in mind when it definitively held that the Second Amendment protects an individual right to keep and bear arms in District of Columbia v. Heller” (131).
The chapter on rights of criminal suspects shows that there have been times when the movie-going public wanted men like Dirty Harry to cut through the gobbledy gook of Miranda rights and probable cause. And other times when we realized those constitutional protections were quite important. Films like Cool Hand Luke, Shawshank Redemption, and Dead Man Walking have forced the public to consider the rights of the convicted. As the courts and the culture grasped a deeper understanding of the meaning of equal protection the movies moved away from films like The Birth of the Nation to films that make their audience deal with issues of racial injustice like In the Heat of the Night or Do the Right Thing. Although as the authors point out, many of the films that illustrate racial progress and deeper understanding center upon white characters taking the lead. The right to privacy in films such as Enemy of the State, Gattaca, Cider House Rules, and Juno are examined with the general conclusion that the “films usually take the side of the individual” (244). Lastly, the right to vote in film is summarized, “These films, especially in recent decades, portray the right to vote as a sacred responsibility and one that signifies the right for citizens to direct the future of the country” (264). There are a few films that are more cynical about the process including Election. In general, the chapters on criminal law and 14th amendment protections are interesting and list plenty of films and cases to consider.
Read carefully, the book shows some of the difficulties in learning about the Constitution through film. Double Jeopardy simply gets the Fifth Amendment wrong. Amistad suggests an Article III judge can be removed by the President. In the movies, the President sometimes seems like the whole of our government. Lately, religion tends to be portrayed in film as an oppressive force whereas there seems to be no limit to obscenity. Guns are glorified and benevolent white folks seem to be always freeing African Americans. Considering some of these imbalances one has to think about whether the students have been entertained enough.
Kasper and Vieregge have written a thorough and enjoyable book on Constitutional case law and film. There may be some tension between this idea and their critique of money in politics in general and the Citizens United Decision on 250-251. After all, that’s a case about an organization spending a great deal of money to produce a movie to influence our politics. However, they have shown that filmmakers have tried to educate the public on the meaning of the Constitution and that the Constitution does not simply belong to nine justices, it belongs to the entire American public. In a part of their conclusion, they say, “we see that the Constitution changes and is applied because people believe they have the agency to take ownership of their responsibilities as citizens—the responsibility to consider our country’s values its laws, and to act in accordance with both. These films remind us of our agency, our ability to make a difference” (271-272).
An excerpt of the book is available here.
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