That has happened repeatedly in the past few decades. It probably explains, to cite only recent examples, the fact that the Supreme Court has approved reverse discrimination on the basis of sex and race under a statute that clearly forbids it, found a right to abortion in the Constitution without explaining even once how that right could be derived from any constitutional materials, and came within one vote of finding a constitutional right to engage in homosexual conduct. For a few years the Court even abolished the death penalty, though the Constitution several times explicitly assumes that penalty to be a matter of legislative choice. My point is not that these choices are necessarily morally or politically wrong; my point is simply that, under the Constitution, these are questions left for the people and their elected representatives, not for courts, to decide.
It seems significant that every departure from the original understanding on that list, be it a departure from the original meaning of a statute or of the Constitution, resulted in the judicial enactment, or attempted enactment, of an item on the modern liberal agenda. Though the Court once legislated results that may be called conservative (which was also an illegitimate judicial role), rarely, if ever, in the past fifty years has it done so. The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically. This difference about the proper role of courts is what the battle over my confirmation was about underneath, but not what it was about in the public campaign.
The public campaign, designed to influence senators through public opinion polls, consisted of the systematic distortion of my academic writings and my judicial record and, it must be said, employed racial and gender politics of a most pernicious variety. The ferocity of the attack, the ideological stance of the assailants, and the tactics they used all showed that the opposition knew they were fighting over more than one judge. They were fighting for control of the legal culture. They knew that in reality and, perhaps even more important, symbolically, they must defeat a nominee who had for long expressed in writing the philosophy of original understanding and had tried to show the lack of any constitutional foundation for some of the liberal culture’s most important victories. The liberal culture needed to preserve, if possible to intensify, and certainly to legitimate, the politicization of the Court and the Constitution.
These are matters worth discussing, for there will be many future nominees to the Supreme Court, and the philosophies of those who are confirmed will have much to do with the future of our constitutional form of government and with the direction of our politics and culture. One purpose of this book is to persuade Americans that no person should be nominated or confirmed who does not display both a grasp of and devotion to the philosophy of original understanding.
Nor should the American people put up with a political campaign about nominees that resorts to untruths or to a confirmation process in which senators demand that the nominee promise specified results. The way the campaign against my confirmation was waged, if it becomes the norm, will have long-term effects—effects on the judicial nomination process of the future, effects on the substance of our law, particularly our constitutional law, and effects upon the intellectual life of the law.
The liberal elites will not be satisfied with blocking the nomination of judges who may be expected to adhere to the historic principles of the Constitution. They intend to root that idea out of the intellectual life of the law, to make the philosophy of original understanding, and the associated idea of political neutrality in judging, disqualifying for the men and women who hold them. They have almost achieved that in the legal academic world; they are trying to achieve it in public discourse. They made much play with the claim that I was “outside the mainstream.” But it is obvious from those who supported me, men and women whose legal careers define the mainstream, that the ultraliberal activists were, in actuality, trying to shift the mainstream radically to the left. If by vilification you can make people believe that the center is actually the extreme right, then you can get them to think that the left must be the center. That is the way the war for control of the legal culture is being fought.
But what I have just described is merely part of a larger war in our culture. As an integral part of that culture, law both reflects and influences trends and ideological movements there. In the last twenty-five years what we had thought were shared values and moral first principles have begun to disintegrate. There has always been a division between liberals and conservatives, of course, but part of liberal thought has evolved into something quite different from the liberalism of a quarter of a century ago. Now we seem to be experiencing in our law, our politics, and our culture something relatively new, a kind of restless and unprogrammatic radicalism that does not share but attacks traditional values and assumptions.
Thus, Alasdair Maclntyre states, “modern politics cannot be a matter of genuine moral consensus…. Modern politics is civil war carried on by other means.”8 If that is true—and it may be increasingly true—we may expect a politics that is increasingly polarized and divisive. Max Lerner wrote that he had not seen a time since the 1960s when our politics were so Jacobin.9 There is a ferocity and irresponsibility about political struggle as practiced by a wing of modern liberalism that results in large measure from the arrival on the national scene of the activists of the 1960s, who have brought their ideological baggage with them intact. The left activists of that generation and those whom they have swayed hold only contempt for the limits of respectable politics and indeed for political neutrality in any institution, including the federal judiciary. When courts are viewed as political bodies, we may expect judicial confirmations that are increasingly bitter. We may also expect a constitutional law that lurches suddenly in one direction or another as one faction or another gains the upper hand, a constitutional law that is seen as too crucial a political weapon to be left to nonpolitical judges, and certainly too important to be left to the actual Constitution.
The judicial assumption of ultimate legislative power is deceptive and difficult to resist because that assumption takes the form of a judgment handed down like other judgments, claims to be “constitutional,” and leaves the appearance of the separation of powers intact. Those who deny the validity of a jurisprudence of original understanding do not explicitly propose a rearrangement of our republican form of government. “The denial of a scheme wholesale is not heresy, and has not the creative power of a heresy,” said Belloc. “It is of the essence of heresy that it leaves standing a great part of the structure it attacks. On this account it can appeal to believers…. Wherefore, it is said of heresies that ‘they survive by the truths they retain.’ ”10 We retain the reality of legislative and executive authority over wide areas of life. Moreover, we retain the institution of judicial review because we have found that it does much good. These are the truths that make the misuse of judicial power all the more insidious. For that reason, it is crucial to recognize a heresy for what it is and to root it out, for “heresy originates a new life of its own and vitally affects the society it attacks. The reason that men combat heresy is not only, or principally, conservatism … it is much more a perception that the heresy, in so far as it gains ground, will produce a way of living and a social character at issue with, irritating, and perhaps mortal to, the way of living and the social character produced by the old orthodox scheme.”
This book is not, therefore, ultimately about legal theory. It is about who we are and how we live; it is about who governs us and how, about our freedom to make our own moral choices, and about the difference that makes in our daily lives and in the lives of generations yet to come.
A Word About Structure
The most active agent in transforming the federal courts has been the Supreme Court of the United States. For that reason, Part I of this book considers the increasing politicization of the Court and the Constitution in five chapters, four devoted to the Court from the beg
inning to the mid-1930s, the New Deal Court, the Court under Chief Justice Earl Warren, and the Court under Chief Justices Burger and Rehnquist. The fifth chapter draws conclusions about the path of the Court over time.
In recent decades, however, a new force has appeared in this arena: a herd of theoreticians of the Constitution, almost all of them professors of law. It is the enterprise of the large majority of this intelligentsia to justify the political behavior of the Court in the past and to provide theories that will draw the Court ever farther along the path of left-liberal Constitution rewriting. Part II is, therefore, devoted to theories of how constitutional judges should conduct themselves. It begins with a statement of the basic problem—defining the respective rights of majorities and minorities—that all theories of constitutional interpretation must solve. In the next two chapters I offer an argument that only by interpreting the Constitution according to the meaning it was understood to have when adopted can a judge solve the problem; I then turn to meet the numerous objections that have been offered to that conclusion. The next two chapters analyze the theories put forward by liberal and conservative theorists who want the Court to depart from the original meaning of the document. The theories of each set of revisionists are, and this may come as no surprise, found deficient, and seriously so. The following chapter examines some nonconstitutional ideas—both extreme moralism and extreme moral relativism—that have worked their way into constitutional decisions. I next argue that no theory that calls for departures from the original understanding can ever succeed. Part II closes with a chapter showing that rigorous legal reasoning is crucial to the maintenance of our form of government and our freedoms while a preference for “good results” over good reasoning subverts both the structure of government and freedom.
In Part III I place my own experience as President Reagan’s nominee to a seat on the Supreme; Court in the context of the wars that rage for control of our legal culture and our general culture, suggest what is at stake as those wars continue, and try to estimate what effects my experience may have on the future.
Because provisions of the Constitution are frequently discussed, that document is set out at the end of the book as an Appendix.
I
THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS
A popular style in complaining about the courts is to contrast modern judges with those of a golden or, at least, a less tarnished age. Many people have a fuzzy impression that the judges of old were different. They did things like “follow precedent” and “apply the law, not make it up.” There is a good deal to be said for that view. The practice of judicial lawmaking has certainly accelerated spectacularly in this century, particularly in the past four or five decades. Nevertheless, the whole truth is rather more complicated.
From the establishment of the federal judiciary at the end of the eighteenth century, some judges at least claimed the power to strike down statutes on the basis of principles not to be found in the Constitution. Judges who claimed this power made little or no attempt to justify it, to describe its source with any specificity, or to state what principles, if any, limited their own power. No more have the activist judges of our time. Justifications for such judicial behavior had, for the most part, to await the ingenuity of modern law faculties. But the actions of the federal judiciary, and in particular those of the Supreme Court, have often provoked angry reaction, though rarely a systematic statement of the appropriate judicial role. The appropriate limits of judicial power, if such there be, are thus the center of an ancient, if not always fruitful, controversy. Its confused and unfocused condition constitutes a venerable tradition, which is one tradition, at least, modern scholarship leaves intact. This part of the book traces the history of judicial revisions of the Constitution, identifies the social values revisionism served, and evaluates such justifications as were offered.
In a single volume, it is possible to examine only the most obvious or the most explicit revisions of the Constitution. But it is important to keep in mind that any court seen engaging in overt revisionism will, in all probability, have engaged in many more instances of disguised departures from the Constitution. A court that desires a result the law does not allow would rather, whenever possible, through misuse of materials or illogic, publish an opinion claiming to be guided or even compelled to its result by the Constitution than state openly that the result rests on other grounds. That is because popular support for judicial supremacy rests upon the belief that the court is applying fundamental principles laid down at the American founding. We would hardly revere a document that we knew to be no more than an open warrant for judges to do with us as they please.
Disguised or not, the habit of legislating policy from the bench, once acquired, is addictive and hence by no means confined to constitutional cases. The activist or revisionist judge, as we shall see, can no more restrain himself from doing “good” in construing a statute than when he purports to speak with the voice of the Constitution.
The values a revisionist judge enforces do not, of course, come from the law. If they did, he would not be revising. The question, then, is where such a judge finds the values he implements. Academic theorists try to provide various philosophical apparatuses to give the judge the proper values. We may leave until later the question of whether any of these systems succeed. The important point, for the moment, is that no judge has ever really explained the matter. A judge inserting new principles into the Constitution tells us their origin only in a rhetorical, never an analytical, style. There is, however, strong reason to suspect that the judge absorbs those values he writes into law from the social class or elite with which he identifies.
It is a commonplace that moral views vary both regionally within the United States and between socio-economic classes. It is similarly a commonplace that the morality of certain elites may count for more in the operations of government than that morality which might command the allegiance of a majority of the people. In no part of government is this more true than in the courts. An elite moral or political view may never be able to win an election or command the votes of a majority of a legislature, but it may nonetheless influence judges and gain the force of law in that way. That is the reason judicial activism is extremely popular with certain elites and why they encourage judges to think it the highest aspect of their calling. Legislation is far more likely to reflect majority sentiment while judicial activism is likely to represent an elite minority’s sentiment. The judge is free to reflect the “better” opinion because he need not stand for reelection and because he can deflect the majority’s anger by claiming merely to have been enforcing the Constitution. Constitutional jurisprudence is mysterious terrain for most people, who have more pressing things to think about. And a very handy fact that is for revisionists.
The opinions of the elites to which judges respond change as society changes and one elite replaces another in the ability to impress judges. Thus, judicial activism has had no single political trajectory over time. The values enforced change, and sometimes those of one era directly contradict those of a prior era. That can be seen in the sea changes constitutional doctrine has undergone in our history. There will often be a lag, of course, since judges who have internalized the values of one elite will not necessarily switch allegiances just because a new elite and its values have become dominant. When that happens, when judges are enforcing values regarded by the dominant elite as passé, the interim between the change and the replacement of the judges will be perceived as a time of “constitutional crisis.” The fact of judicial mortality redresses the situation eventually, and new judges enforce the new “correct” values. This has happened more than once in our history. The intellectuals of the newly dominant elite are then highly critical of the activist judges of the prior era for enforcing the wrong values while they praise the activist judges of their own time as sensitive to the needs of society. They do not see, or will not allow themselves to see, that the judicial performances, judged as judicial perf
ormances, are the same in both eras. The Supreme Court that struck down economic regulation designed to protect workers is, judged as a judicial body, indistinguishable from the Court that struck down abortion laws. Neither Court gave anything resembling an adequate reason derived from the Constitution for frustrating the democratic outcome. So far as one can tell from the opinions written, each Court denied majority morality for no better reason than that elite opinion ran the other way.
In this chapter and the next, we shall see that the Supreme Court’s activism was at various times enlisted in the protection of property, the defense of slave owners, the protection of business enterprise in an industrializing nation, the interests of groups in the New Deal coalition, and, today, the furtherance of the values of the elite or cluster of elites known as the “new class” or the “knowledge class.”1 The point ought not be overstated. We are discussing a strong tendency, not invariable conduct. No Court behaves in this way all of the time, in every case. Few judges are so willful as that. The structure of the law does have force, and, in any event, most cases do not present a conflict between elite morality and the law’s structure. Yet such occasions arise in important matters, and it is those occasions that give the Court of each era its distinctive style.
Part of any revisionist Court’s style, in addition to the nature of the nonconstitutional values enforced, is the rhetoric employed. The Court of each era is likely to choose different provisions of the Constitution or different formulations of invented rights as the vehicles for its revisory efforts. These are different techniques for claiming that what is being done is “law.” The shifts in terminology do not alter the reality of the judicial performance as such. Still, the rhetoric employed will often disclose what values are popular with the elites to which the Court responds. Thus, the Court’s shift from the use of the word “liberty” in the due process clause, popular in the closing decades of the last century and the opening decades of this century, to the idea of equality in the equal protection clause signified a shift in dominant values. It also signified a change in the social groups to which the Court responded, a decline in the influence of the business class and a rise in that of the New Deal political coalition and its intellectual spokesmen. Similarly, the change from “liberty of contract,” used in striking down economic reform legislation, to the “right of privacy” employed to guarantee various aspects of sexual freedom, signals a change in dominant values from capitalist free enterprise to sexual permissiveness, and, again, a change in dominant elites from the business class to the knowledge class, though now with less concern than previously for the social values of those who made up the New Deal coalition.
The Tempting of America Page 3
