Writers on the baleful influence of certain ideas commonly exonerate those who advance the ideas from blame for the results. Thus, James Q. Wilson, writing of the public philosophy that flows from the Enlightenment, says that “Most of us will continue to enjoy [its] benefits for centuries to come. But some will know only the costs, costs imposed on them by well-meaning people who want only to do the right thing.”28 Myron Magnet, of Fortune Magazine and the Manhattan Institute, similarly absolves many people of anything worse than misguided efforts to help.29 Surely a number of such people want to do the right thing, are well-intentioned, but just as surely some do not act from creditable intentions. Some of our elites…professors, journalists, makers of motion pictures and television entertainment, et al.…delight in nihilism and destruction as much as do the random killers in our cities. Their weapons are just different. But who, familiar with the academic world, to take a single instance, has not seen destructive ideas spread by men and women, not because they mean well but because they want notoriety, influence, power, or just because they enjoy laying waste the structures built by others? There is no particular reason to think that people with Ph.D.s are more well-intentioned than people who dropped out of high school.
It will be extremely difficult to defend traditional values against intellectual class onslaught. Not only do the intellectuals occupy the commanding heights of the culture and the means by which values and ideas are created and transmitted, they control the most authoritarian institution of American government, the federal and state judiciaries, headed by the Supreme Court of the United States. The courts have increasingly usurped the power to make our cultural decisions for us, and it is not apparent that we have any means of redress. We turn to that next.
6
The Supreme Court as an Agent of Modern Liberalism
It is arguable that the American judiciary…the Supreme Court, abetted by the lower federal courts and many state courts…is the single most powerful force shaping our culture. There are other claimants to the title, to be sure, but the judges’ preeminence seems clear. I will focus here primarily on the Supreme Court. The Court today is, as it always has been, a legal institution, but it also undertakes to decide hot button questions of culture and politics that are, strictly speaking, none of its business.
In its cultural-political role, the Court almost invariably advances the agenda of modern liberalism. That is to say, the Justices, or a majority of them, are responsible in no small measure for the spread of both radical individualism and radical egalitarianism. The Court chose this path before the spirit of the Sixties became evident, which is another sign that the Sixties radicals did not originate but accentuated trends that were already active.
“Over and over again,” observes Robert Nisbet, “constitutional history in America is one of conflict between those insisting upon maximization of individual rights and those insisting upon the autonomies of the corporate rights of states and local communities.”1 The Court in modern times has regularly maximized individual rights against the corporate rights of all intermediate institutions. In the adversarial relationship between the individual and society posited by Mill’s “one very simple principle,” the Court in matters of morality and social discipline has sided with Mill far more often than the actual Constitution warrants. But when government imposes egalitarianism, the Court has ratified that choice. When liberty and equality come into conflict, the Court almost always prefers equality, even in its modern, corrupt, egalitarian form.
This is a philosophy, or mood, that cannot be derived from the Constitution. It is approved, however, by a group we have just discussed, the intellectual class. That class has distinctive attitudes, well to the left of the American center, and their command of the avenues for the dissemination of facts (whether true or false) and attitudes, their capacity to make and unmake reputations, makes them a powerful cultural force, a force to which some judges respond and others cater. It will not have escaped the reader’s notice that judges belong to that class and so absorb its viewpoints and predilections naturally.
It is instructive that in the United Kingdom, the primary proponents of adopting a written constitution and the power of judicial review of legislation are the Labor Party and intellectuals. The reasons are obvious. That development would shift a great deal of power from the British electorate to judges who would better reflect the leftish agendas of Labor and intellectuals. Cultural and political victories would then be achieved in the courts that could not be achieved in Parliament. The British proponents of judicial supremacy have learned from the American experience.
The pure version of intellectual class leftishness, to the point of being a parody of modern liberalism, exists in institutionalized form in the American Civil Liberties Union, which has had, through litigation and lobbying, a very considerable effect upon American law and culture. William A. Donohue, a long-time student of the organization, says that the ACLU “fixes its eyes exclusively on individual rights and is deterred from its atomistic vision only when the competing issue of group equality emerges.”2 Thus, the ACLU argues on the one hand for rights to abortion, to practice prostitution, to homosexual marriage, to produce and consume pornography, and much more. Its individualism is so radical that it contends nude dancing is constitutionally protected free speech and it opposes metal detectors in airports as an intrusion upon individual autonomy. But when equality comes into play, the ACLU is for affirmative action and generally for more government limitations on the freedoms of business owners and managers, such as the power to discharge an employee for unsatisfactory performance. The ACLU is the premier litigating and lobbying arm of modern liberalism, and it has been extremely successful. Our primary concern here, however, is with the judiciary rather than the ACLU’s influence upon the course of adjudication.
First of all, there is the Supreme Court’s constitutionalizing of radical individualism. In this area, we have arrived where Mill pointed, at an increasing disjunction between the individual and the society. The result is the “adversary culture.” Though it is neither logical nor legitimate as a matter of constitutional interpretation, there is a psychological basis in our Constitution for judicial radical individualism. One of the prices we pay for our Bill of Rights is an emphasis on personal freedom that is not balanced in the document by a Bill of Personal Responsibilities or a recognition, as in the constitutions of other countries, of limits set by community welfare. It is perhaps understandable, though certainly not excusable, that judges began to inflate enumerated rights and to create new rights, which they enforce against democratic decisions. Given the way the Court’s decisions are reported…as victories for attitudes or moral positions rather than as legal determinations…those decisions resonate throughout our culture with powerful effects on public attitudes.
The unqualified language of the Bill of Rights and the Declaration of Independence, reflected in the continual expansion of individual rights by the judiciary, feed our national obsession about “rights.” That obsession, as Harvard law professor Mary Ann Glendon has pointed out,3 impoverishes cultural, political, and judicial discourse. There is no more sterile form of “argument” than the bald assertion of rights. But bald assertion, unaccompanied by analysis or reasons, is the common form of discourse in these matters.
The jurisprudence of the First Amendment is a case in point. That amendment is a central concern of modern liberal intellectuals, dealing as it does with speech and religion. The difference in the Court’s treatment of those two subjects flows naturally from radical individualism. Modern liberals value speech, which they have now expanded to include non-verbal expression, while their attitude toward religion ranges from indifference to hostility. It is not surprising, then, that the Courts decisions expand the area of protected non-religious expression beyond reason in the interest of the utmost individual freedom. Simultaneously, and largely in the interest of individual autonomy, the Court has drastically limited the public expression of religion beyond an
ything the ratifiers intended.4
The freedom of speech guaranteed by the amendment was long thought by the Court to be speech about ideas, but that is not the Courts view today. Today, the Court reads the speech clause as a protection of self-expression, personal autonomy, or individual gratification. Perhaps the best known instance is Cohen v. California,5 which conferred First Amendment protection on a young man who refused to remove a jacket with the words “F … the Draft” (without the ellipsis) that he wore in a courthouse corridor. Saying that the state could not convict Cohen of disorderly conduct, the Court majority observed: “[T]he principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?”6 The Court went on to offer as the decisive consideration: “[O]ne man’s vulgarity is another’s lyric.”7 Moral relativism, which the Court endorsed, is necessary to radical individualism. But it must, of course, be confined to areas such as speech and sexuality. It would never do to reverse a conviction for assault on the ground that one man’s battery is another’s sparring practice.
The same impulse was on show in the flag-burning case, Texas v. Johnson.8 Forty-eight states and the federal government had enacted laws prohibiting the physical desecration or defilement of the American flag. Johnson and his companions burned a flag while chanting “America, the red, white, and blue, we spit on you.” Texas indicted and convicted him for burning the flag, not for his speech. But five Justices gave two reasons why Johnson’s conviction could not stand. Neither reason bears examination.
The majority’s first reason was that enforcement of the statute violated the “bedrock principle underlying the First Amendment,” that being: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”9 That certainly is a bedrock principle, and it had absolutely no relevance to the case. Texas did not prosecute because Johnson’s idea was offensive but because his mode of expression was. There were dozens or hundreds of ways for Johnson to express his offensive sentiments with the complete protection of the First Amendment. Nor is it unusual for the First Amendment to permit the banning of particular modes of expression. One supposes (though one is no longer quite sure) that government could still prohibit the telecasting of political views in obscenities or the expression of them by loudspeaker at three in the morning in a residential neighborhood. The Court got itself into this particular intellectual quagmire because its responsiveness to the claims of individualism led it to decide previously that an amendment protecting only the freedom of “speech” somehow protects conduct if it is “expressive.”
That brings us to the second reason the Court majority offered:
To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.10
There are so many answers to that it is hard to know where to begin. The most obvious has been mentioned: burning a flag is not speech and should not fall under First Amendment protection. Beyond that, the Court’s claim that it cannot make distinctions without forcing its political views on us is specious. The customs and practices of Americans make the very distinction the Court says it cannot. Our national flag is entirely different from other symbols. Nobody pledges allegiance to the presidential seal or salutes when it appears. Marines did not fight their way up Mount Suribachi to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.
Symbols are necessary to community. As columnist Paul Green-berg put it: “[I]f a nation lives by its symbols, it also dies with them…. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become presences…. Today’s strange arguments from our best-and-brightest against protecting the national emblem are not symptomatic of any kind of treason-of-the-intellectuals, but of a different malady: an isolating intellectualism cut off from a sense of reverence, and so from the historical memory and heroic imagination that determines the fate of any nation.”11 But the denigration of unifying symbols advances the cultural and social dissolution that radical individualism seeks. To realize how far the Court’s “isolating intellectualism” has progressed in recent years, it is necessary only to recall, as the dissenting opinion in Johnson did, that Chief Justice Earl Warren and Justices Hugo Black and Abe Fortas, a trio unlikely to be enshrined in any conservative pantheon, had said that, of course, the Constitution did not bar the states and the federal government from prohibiting the desecration of the American flag.12 The Justices in the Johnson majority were not unintelligent people. They could see the flaws in their argument as well as anyone. But it is no longer necessary to construct or be guided by a logical argument. What matters is that the result be consonant with the modern liberal mood. One can only hope that some day the Court will have occasion to review a conviction of a man who protested the sodomy laws of his state by engaging in indecent exposure. Would the Court hold that the state could not punish him because he was expressing an offensive or disagreeable idea? Would the Justices decide that they could not distinguish between different parts of the anatomy used as symbols without imposing their psycho-social views on the citizenry? I am not sure of the answer, but the oral argument should be high comedy.
The same judicial mood is on show in the rules devised by the Court for speech advocating violence and law violation. The Court has wobbled about on these questions for some time. In a case involving advocacy of violent revolution to impose a proletarian dictatorship, Justice Holmes, joined by Justice Brandeis, contended that “the only meaning of free speech” is that such ideas should be given their chance to have their way. Constitutional scholar Walter Berns summed up that position: “The only meaning of free speech turns out to mean that it is worse to suppress the advocacy of Stalinism or Hitlerism than to be ruled by Stalin or Hitler. The reasons for this are not, one might say, readily apparent.”13 At least in 1925 Holmes and Brandeis were in dissent. But by 1969 a unanimous Court could dash off a short, unsigned opinion in Brandenburg v. Ohio:”[T]he constitutional guarantees of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.”14
There is no reason whatever to throw constitutional protection around such speech except to protect the enjoyment of the individuals speaking or hearing the words. In a republic, where the polls are open and elected representatives make the law, there can be no value in speech advocating the closing of the polls or nullifying the effect of laws democratically made. There is, moreover, no idea that cannot be expressed without advocating violence or law violation…except the idea that the audience should engage in violence or law violation. That idea can hardly be said to have any social benefit in a democracy dedicated to operating under the rule of law.
The Courts treatment of religion is of a piece. Under the First Amendments prohibition of the establishment of religion, the Court has steadily made religion a matter for the private individual by driving it out of the public arena. Lee v. Weisman15 held, for example, that a short, bland, non-sectarian prayer at a public-school commencement amounted to a forbidden establishment of religion. Government coercion of Deborah Weisman was seen by the Court in the possibility that she might feel “peer pressure” to stand or, if not that, to maintain respectful silence during
the prayer. While the Court’s insistence on driving religion and religious symbolism from the public arena has often been justified because of the alleged dangers of allowing religion and government to come close together, a closeness that is not within light years of establishing a theocracy, the Court frequently emphasizes the harm to an individuals sensibilities of seeing religious expression with which he disagrees.
Radical individualism is the only explanation for the Supreme Courts creation, out of thin air, of a general and undefined right of privacy. The Court used the invented right, allegedly to protect the sanctity of the marital bedroom, to strike down a dormant Connecticut statute prohibiting the use of contraceptives.16 But marital privacy was shortly transformed into individual autonomy when the Court invalidated a Massachusetts law restricting access to contraceptives by single persons.17 That in turn led to Roe v. Wade18 and the right to abortion. Whatever one’s feelings about abortion, the decision has no constitutional foundation, and the Court offered no constitutional reasoning.19 Roe is nothing more than the decision of a Court majority to enlist on one side of the culture war.
Slouching Towards Gomorrah Page 12
