This disparity in attitudes and opinions is important because of the tendency of intellectual class attitudes to work their way into our constitutional law. Federal judges, who spend their lives working with ideas, are by definition members of the intellectual class. Perhaps because of their greater contact with the practical world, the world of business and commerce, the world of government and public affairs, judges usually do not share the values of the intellectual class to the same degree as their colleagues in the legal academic world. The judicial subculture, moreover, contains some ideas that tend to insulate the judge from the temptations of the intellectual class outlook, ideas such as adherence to the original understanding of the lawmakers, and the associated ideas of judicial restraint and the political and cultural neutrality of judges. But when the idea of the original understanding is consistently denigrated and its influence declines, the judge is left with the power of judicial review and little else. He is all too likely to begin to find “law” in the assumptions of the class and culture to which he is closest and with which he is most comfortable. Like most busy, practical people, judges often do not fully understand either the foundations or the ramifications of the assumptions of the culture in which they live.
The assumptions and ideas of the intellectual class regularly mutate, which means, to the extent that constitutional law incorporates those assumptions, our fundamental law will shift with intellectual fashion. As former Dean Ely said of suggestions that fundamental constitutional values be created by moral reasoning, “[e]xperience suggests that in fact there will be a systematic bias in judicial choice of fundamental values, unsurprisingly in favor of the values of the upper-middle, professional class from which most lawyers and judges, and for that matter most moral philosophers, are drawn.”1 The upper-middle, professional class is, of course, a major segment of the intellectual class and includes professors, journalists, and members of public interest organizations. As Ely said, “the values judges are likely to single out as fundamental … are likely to have the smell of the lamp about them.”2 I once referred to the tendency of such values to work their way into the law as the “gentrification of the Constitution.”3 The constitutional culture—those who are most intimately involved with constitutional adjudication and how it is perceived by the public at large: federal judges, law professors, members of the media, public interest groups—is not a cross-section of America politically, socially, or morally. The truth is that the judge who looks outside the historic Constitution always looks inside himself and nowhere else. And when he looks inside himself he sees an intellectual, with, as often as not, some measure of intellectual class attitudes.
The wide disparity between the left-liberal values of the intellectual class and the dominant values of bourgeois culture has existed and been widely recognized for a long time. For almost all of this century the “political weight of American intellectuals … has been disproportionately on the progressive, liberal, and leftist side.”4 The reasons for that disparity have been explored by a number of commentators, seem clear, and need not be rehearsed here.5 One commentator has thus observed that American intellectuals display
… almost in the manner of the livery of their vocational guild, an attitude of contempt and moral superiority toward the “business culture” of the United States, toward commerce, technology, and entrepreneurship…. They tend to regard themselves as being above the mundane practicalities of the worlds of trade, industry, and finance. In their teaching, and even more emphatically in their scholarship, there is a marked proclivity towards highly abstract theorizing and stridently censorious moralizing.6
Because of its stance in opposition to business-class or bourgeois values, indeed to the values of a majority of Americans, this class has been described as constituting an adversary culture.
There exists in this culture a significant disjunction in attitudes. The same people and organizations manage simultaneously to adopt positions of extreme moralism and extreme moral relativism. If one had to choose one organization to illustrate this feature of modern left-liberal culture, it would be the American Civil Liberties Union. Its positions resemble those of many other public interest groups, and it is the primary litigating arm of the adversary culture.* The ACLU’s major asset with the general public is its claim that it is a nonpartisan civil liberties organization. That claim is demonstrably false.7 The ACLU is in fact a highly political organization and is determined to advance an agenda through the courts that often has little or nothing to do with civil liberties found in the Constitution or our statutes.
As a list of its positions* demonstrates, the ACLU favors intrusive governmental action in the service of morality in some areas but insists that the Constitution mandates moral relativism in others. Reviewing Our Endangered Rights: the ACLU Report on Civil Liberties Today, Professor Jeremy Rabkin says, “Indeed, the most revealing thing in this book is the extraordinary scope the ACLU now gives to the term civil liberty.”8 It contains an essay on “ ‘Sexual Justice,’ demanding special protection for homosexuals, legal recognition of homosexual marriages, and the rejection of any distinctions between men and women in the military. Then there is a neo-Marxist essay on ‘Economic Justice,’ demanding income redistribution and social control of corporate investment—in the name of enhancing liberty.”9 “[T]here are essays such as the one by Thomas Emerson on academic freedom, in which he endorses court challenges to the adoption of ‘racist’ school texts, while simultaneously endorsing court review of the ‘censorship’ involved in removing inflammatory books from school libraries.”10
Another book describes such dogmatic “libertarians” as taking the most extreme positions in favor of free expression and freedom of life-style while also being strong advocates of equality, of business regulation, and of income redistribution, and tending to be indifferent to patriotism, personally uninterested in religion, and not very concerned about lawbreaking by citizens. Rabkin comments: “The ideological associations are so familiar, it is easy to forget how essentially incongruous they really are. Why do people who would trust government officials to control the allocation of vast resources with sensitivity and selflessness so often insist that government can never be trusted to distinguish unorthodox critics from inflammatory hate-mongers, or risqué entertainment from sadistic pornography? Why do people who insist that there can be no harm in a high-school teacher touting radical political causes, or flaunting a ‘gay’ lifestyle, object so strongly to any display of religious symbols in public schools? In general, why do those who boast of their determination to transform society through government action like to regard themselves as the greatest champions of liberty?”11
Attention must be paid to the apparent inconsistency of positions that seem to demand, simultaneously, governmental coercion in the service of certain moral values and individual freedom from law in the service of moral relativismAttention must be paid, because that syndrome, advanced in litigation by the ACLU, other public interest organizations, and law professors, has entered into our constitutional jurisprudence.
Perhaps Professor Rabkin is correct, perhaps these positions are wildly inconsistent. Or perhaps their consistency is to be found only in that they are all hostile to the attitudes of middle-class, bourgeois culture. In that case, the consistency is hypocritical since these ideas would then have to be seen as held not for their own perceived merits but as weapons employed to damage the morale and erode the ascendancy of bourgeois culture in order to achieve the hegemony of the left-liberal culture.
There is, however, an alternative explanation, which I offer without entire confidence but for consideration. The groups under discussion hold strongly egalitarian social views. Whether that is a genuine commitment or simply a manifestation of hostility to bourgeois attitudes, the fact remains that this stance may at least suggest coherence in the ideas advanced.
An egalitarian morality naturally produces both extreme governmental restrictions of individual liberty and, simultaneously, th
e demand that government recognize the “right to be let alone.” Egalitarian bureaucracies try to prohibit father-son banquets at high schools and insist that workers be denied promotion on merit in order to achieve proportional representation of the sexes and ethnic groups in the work force. As a friend of mine put it, “Whether the issue be racial balance in schools, seat belts on autos, or the rules for women’s basketball in Iowa, the desires of the people to be affected are given little or no weight by the intellectual class.” These are clearly coercions of individuals in order to implement a particular morality. Yet, this same segment of our culture emphatically denies the right of majorities to regulate abortion, homosexual conduct, pornography, or even the use of narcotics in the home. On the one hand, there appears to be a degree of morality so severe that it amounts to moralism, and, on the other, a hostility to morality so strong that it amounts to moral relativism. Each is the natural outcome of an egalitarian or redistributionist ethos.
Egalitarianism is hostile to hierarchies and distinctions. Hence law must be used to weaken or eliminate them, striking at private morality and behavior that is not egalitarian. For entirely innocent reasons, the preferences and talents of people will not always produce equality of results. The egalitarian tendency is then to coerce equality of result by law. That tendency is, of course, frequently checked by public reaction, but it remains a tendency. Law may not be used, however, to enforce moral standards that are not egalitarian. This results in what may be seen as moral relativism or the privatization of morality. One person’s morality being as good as another’s, the community may not adopt moral standards in legislation. This viewpoint is often expressed by the common and wholly fallacious remark that “You can’t legislate morality.” Indeed, as discussed in Chapter 4, we legislate little else.
There is little doubt that this intellectual class bias has infiltrated our jurisprudence. The Court has, as we have seen, upheld government’s use of gender preferences even though the applicable statute flatly prohibited that practice. In Regents of the University of California v. Bakke,12 four members of the Court upheld the constitutionality of racial preferences in a state medical school’s admission policies and the fifth Justice, whose position became the law, decided that race could not be an absolute criterion but that it could be a factor considered in giving preference to minority applicants.13 There are a number of such holdings approving coercive governmental action in these areas.14 This appears to be a moralism so strong that it overcomes positive law.
But the Court has also partially adopted the other prong of left-liberal ideology, moral relativism or the privatization of morality. This may be seen very dramatically in the Court’s creation of the “right of privacy,” which has little to do with privacy but a great deal to do with the freedom of the individual from moral regulation.15 When privacy is not a plausible concept in the circumstance of a case, various Justices have, we have seen, invented other rights to free the individual from community standards: the right not to conform, the right to dignity, and the right to be left alone. All are expressions of rampant individualism and hence of moral relativism. The Constitution does protect defined aspects of an individual’s privacy and it does privatize specified areas of moral behavior. The fourth amendment’s protection of the privacy of the home from unreasonable searches is an illustration of the former, as is the first amendment’s protection of the free exercise of religion of the latter. But the Court has erected individual autonomy into a constitutional principle that sweeps far beyond any constitutional provision, as it did in cases forbidding the regulation of the sale of contraceptives and drastically restricting the ability of state legislatures to regulate abortion. The relativity of morality was certainly expressed by the four Justices who voted that a community may not express its sexual morality in a law prohibiting homosexual conduct.16 These examples do not depend upon one’s view of the merits or morality of any of these pieces of legislation. The point is that nothing in the Constitution prevents such laws, and the Justices could vote against them only on the principle that sexual morality is a private matter with which the legislatures may not interfere.
As might be expected, intellectual class moral relativism is particularly evident in cases decided under the first amendment, which deals with religion and speech. These are subjects that lie at the center of our moral and political life as a nation. Due to decades of left-liberal dominance on the Supreme Court, moral relativism and untrammeled individualism are built into Court-created first amendment doctrine. That seems to me the only explanation possible for recent Court decisions, discussed in Chapter 4, holding that the speech clause protects the public burning of the American flag and the provision of pornographic telephone messages by the dial-a-porn industry. These are decisions in no way required by the historical guarantee of freedom of speech.
The same tendency may be seen in the Court’s reading of the religion clauses of the first amendment. Under the clause prohibiting the passage of laws “respecting an establishment of religion,” the Court has, quite unnecessarily, effectively banished religious symbolism from our public life. The severity of the Court’s establishment of secularism as our official creed is illustrated by the case, also mentioned in Chapter 4, holding unconstitutional the display of a creche at Christmas time in a public building. The Court has, in fact, read the two religion clauses so expansively as to bring the prohibition of the establishment of religion into direct conflict with the guarantee of free exercise. The classic example is Wisconsin v. Yoder.17 Amish parents objected to the state’s school attendance laws, stating that their religion prohibited them from allowing their children to attend public school after the eighth grade. The Wisconsin statute required attendance to the age of sixteen and was in no way aimed at religion. The Supreme Court found the law a violation of religious freedom and held that the Amish children need not comply with it as other children must. Quite aside from the question of whether the decision was right or wrong, it makes plain that the religion clauses have been brought into conflict with each other. Had Wisconsin legislated an exception for the Amish, that favoritism clearly would have been held a forbidden establishment of religion. Thus, in the name of the free exercise of religion, the Supreme Court, according to its own criteria, itself established a religion.
This seems an example of the privatization of morality. Religion is regarded by most Americans as the sole or primary source of moral belief. The great expansion of the establishment clause serves to expunge official expressions of religious morality from our public life while the great expansion of the free exercise clause serves to reinforce individual autonomy even against laws that are in no way aimed at religion.
Moral relativism became explicit in the cases dealing with obscenity and pornography. Cohen v. California18 threw first amendment protection around the behavior of a man who wore into a courthouse a jacket bearing words which suggested that the reader perform an act of extreme anatomical implausibility (copulation, to put it euphemistically) with the Selective Service System. Justice Harlan, writing for a majority of the Court, said the state could not ban such obscenity in public. “[T]he principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?” From the perspective of moral relativism all words are the same. To take Harlan’s line, one might as well say that the negligence standard of tort law is invalid because it is inherently boundless. How is one to distinguish the reckless driver from the safe one? The answer in both cases is by the standards of the community, applied through the common sense of the jury. Almost all judgments in law, as in life, are ones of degree. As Holmes said:
[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or short imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure according to t
he degree of danger attending it” by common experience in the circumstances known to the actor.19
The law has never flinched from such judgments except when, as in the case of morals, judges seriously doubt the community’s right to make moral judgments. But Harlan made it even clearer that moral relativism was the basis for the decision when he observed, and apparently thought the observation decisive: “[O]ne man’s vulgarity is another’s lyric.”20 If the statement that one man’s moral judgment is as good as another’s were taken seriously, it would be impossible to see how law on any subject could be permitted to exist. After all, one man’s larceny is another’s just distribution of goods.
Almost unlimited personal autonomy in these areas is defended with the shopworn slogan that the individual should be free to do as he sees fit so long as he does no harm to others. The formula is empty. The question is what the community is entitled to define as harm to others. It is difficult to know the origin of the peculiar notion that what the community thinks to be moral harm may not be legislated against. That notion has been given powerful impetus in our culture, as Gertrude Himmelfarb has shown, by John Stuart Mill’s book, On Liberty.21 As she demonstrates, Mill himself usually knew better than this. It is, in any event, an idea that tends to dissolve social bonds. As Lord Devlin said, “What makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should behave and govern their lives.”22 A change in moral environment—in social attitudes toward sex, marriage, duties toward children, and the like—may surely be felt to be as harmful as the possibility of physical violence or the absence of proportional representation of ethnic groups in the work force. The Court has never explained, nor has anyone else, why what the community feels to be harm may not be counted as one.
The Tempting of America Page 32
