Slouching Towards Gomorrah

by Robert H. Bork

  The parochial morality of an arrogant intellectual class cannot sustain a democratic consensus about the legitimacy of law. As one abstract theory after another collapses in intellectual shambles, we head towards constitutional nihilism. No one knows what will happen if Americans see the judiciary for what it is, an organ of power without legitimacy either in democratic theory or in the Constitution. Perhaps we will simply accept the fact that the courts are our governing bodies. Perhaps, though it is highly unlikely, we will amend the Constitution to reassert ultimate democratic control. There does not seem to be a third choice except civil disobedience by legislatures and executives. The most likely outcome seems, at the moment, to be passive acceptance of the ukases of the Court.

  The other institution that may seem to hold the prospect of unifying a multiethnic and increasingly contentious society is the federal government, by which I mean the federal bureaucracies, for it is the bureaucracies that directly and pervasively impinge on the lives of people. Bureaucracies tend to be levelling institutions. A strong egalitarian philosophy implies extensive regulation of individuals by law (because equality of condition does not come about naturally) and a depreciation of the value of democratic processes. Egalitarianism is reinforced by the need of bureaucracies for uniform rules required for ease of administration.

  If equality is the ultimate and most profound political good, there is really very little to vote about. Only a society with a profusion of competing values, all regarded as legitimate, needs to vote. In such a society, there being no way of saying that one outcome is a priori better than another, it is the legitimacy of the process that validates the result; not, as in a thoroughly egalitarian society, the morality of the result that validates the process. There is thus a built-in tension between the ideal of equality of condition and the ideal of democracy. That tension is not merely philosophical, which is how it has just been stated, but exists as well at the level of practical governance.

  A modern society whose predominant value is equality necessarily displays three related symptoms: a strong sense of guilt; a consequent feeling of personal insecurity; and, as a direct result of the first two, the spread of an oppressive and excessive legalism throughout the social body.

  A society whose morality is egalitarian but whose structure is inevitably hierarchical, a society that feels there are unjustifiable inequalities throughout its social, political, and economic order, is a society that feels guilty. It may seem odd that people who understand that a complex, vital society is necessarily hierarchical can simultaneously feel that the existence of hierarchies is somehow immoral. Yet it is plain that many of us do feel that way. Bad social conscience is taught to the young as dogma. Randall Jarrell wrote of a fictional but not untypical New England college that could have carved on an administration building: Ye shall know the truth, and the truth shall make you feel guilty.7 In certain academic circles, with which I was once familiar, a sense of guilt became as essential to good standing as proper manners used to be.

  It is also true that at a time when we have achieved greater personal security for the individual than ever before in recorded history, we have become increasingly anxious. Every newspaper, every television talk show, has been loud in lamentation of today’s job insecurity. It is a myth. The truth, as James K. Glassman reminds us, is far different. “Unemployment has dropped from 7.7 percent to 5.5 percent since 1992, workers keep their jobs as long as they ever did, and many companies (including AT&T) are surprisingly generous with the employees they lay off.”8 Overall job stability has changed little. In fact, length of job tenure has been increasing. Glassman attributes the uproar to the baby boom generation turning 50. That is the generation that is most likely to feel guilt not only about economic and social hierarchies but about having arrived themselves pretty far up in those hierarchies. Those sentiments magnify the sense of being at risk that that generation displays. The demand that all should be insulated from risk is an egalitarian response to the prospect of varying individual fortunes.

  Security has become a religion. We demand it not only from government but from schools and employers, we demand it not only from major catastrophe but from minor inconvenience; not only, to take health plans as an example, from the financial disaster of major surgery and prolonged hospitalization but from having to pay for a medical checkup—and we demand it as of right. So it is in all our relationships. We have even thrown constitutional protection around the imposition of minor disciplinary measures by school authorities. David Riesman’s picture of university students some forty years ago seems a passingly accurate description of our society now.

  Riesman had his students read about the cultures of the Pueblo and Kwakiutl Indians, and asked which most closely resembled the culture of the United States. The Pueblo were described as a peaceable, cooperative, relatively unemotional society, in which no one wishes to be thought a great man and everyone wishes to be thought a good fellow. Kwakiutl society, on the other hand, was pictured as intensely rivalrous, marked by conspicuous consumption, competition for status, and power drives. The great majority of the students questioned saw American society as essentially Kwakiutl. Riesman points out that this self-image is wide of the mark, that Americans tend to be a mild and cooperative people and bear a good many resemblances to the characteristics ascribed to the Pueblo.9

  Only modern liberalism, which was on the way when Riesman’s students responded, could persuade anyone that our relatively safe and cooperative society is actually egomaniacal and ruthless. The students made their assessment before the violence of the underclass had exploded. People who regard mainstream American culture as comparable to Kwakiutl are obviously highly insecure. It is perhaps for that reason that they continually seek additional protection and security, and seek much of it through government.

  A society whose members feel insecure and guilty seeks the antidotes of security and expiation by trying to legislate equality. Our legislatures, our bureaucracies, and our courts are attempting to guarantee every right, major or minor or merely symbolic, people think they ought ideally to possess. There is no reason to suppose that we will achieve equality of condition. We will not. In saying that we are necessarily a hierarchical society, I mean simply to state the obvious: any big, complex society must depend upon differential rewards of some kind to operate effectively. There is, as has been remarked, a “natural tyranny of the bell-shaped curve” in the distribution of the world’s goods. Because of the inefficiency it imposes, the effort to achieve equality may, as in communist countries, result in everybody having less, but what there is will still be distributed unequally.

  But the enormous profusion of egalitarian regulations is incompatible with democratic processes in still another way. Democratic government is limited government for the simple reason that there are economies of scale in governmental institutions, as in all others. Since we can hardly have a dozen congresses and presidents simultaneously at work, the only available alternative is government by semi-independent and increasingly independent bureaucracies.

  As government spreads, bureaucracies get beyond the power of the elected representatives to control. Government is too big, too complicated, there are too many decisions continually to be made. The staffs of both the President and Congress have been so enlarged in the effort to cope with the workload that both institutions have become bureaucratized. The result is a serious institutional overload for all branches of government.

  Democratic processes become increasingly irrelevant. They simply are not the processes by which we are ruled or can be ruled. And there is increasing acceptance of this condition, in part because egalitarians do not care greatly about process. That is why they prefer an activist Supreme Court as a means of displacing democratic choice by moral principle. That was the reason for the Equal Rights Amendment, which provided that it should be primarily the function of the judiciary to define and enforce equality between the sexes. The amendment, we were assured, did not mean that no distinction
s whatever may be made between men and women, that women must, for instance, be conscripted for combat duty or that unisex bathrooms are required. Yet it was proposed that the Supreme Court rather than Congress or the state legislatures make the necessary detailed and sensitive political choices to write a gender code for the nation. In that sense, the amendment represented less a revolution in sexual equality than a revolution in our attitudes about constitutional methods of government. The intellectual class, it hardly needs saying, was in favor of the ERA. Had it not been for instense political activity by people like Phyllis Schlafly, the ERA would have been adopted.

  This episode is characteristic. When a controversial proposition is put to the nation for an up or down vote, an effective political leader like Schlafly can rally the electorate and their representatives to stop a departure from democratic governance. But the issue is rarely put that way. There was nothing Schlafly or anyone else could do to stop the judicial enactment of the ERA or the judicial approval of homosexual marriages. Still less is it possible to mount effective opposition across the board to myriad bureaucratic usurpations of democratic control. With scores of agencies and the executive departments all churning out regulations, it is apparent that the bureaucracies make most of the law by which we are governed. Regulations issued in 1994 took up nearly 65,000 pages in the Federal Register; in 1995, the number was 67,518.

  It is true that Congress can alter the decisions made by bureaucracies, but that is by no means an adequate answer. So much law is made non-democratically, by bureaucracies, that no legislature can focus on more than a small fraction of the choices made. Moreover, the bureaucracies develop rather small but intense constituencies, which often have more political influence than an electorate aggrieved by the total amount of regulation but rarely unified in opposition to any one regulation.

  The prospect, then, is the increasing irrelevance of democratic government. What replaces it is bureaucratic and judicial government, which may be benign and well intentioned, and may respond somewhat to popular desires, though by no means always, but cannot by definition be democratic. Matters are not helped by the fact that the leadership of one of our political parties is not fully committed to the traditional American system of government. “[T]here seems to be a rising undercurrent of discontent with the American system among elite Democratic supporters. System alienation becomes a significant factor after the 1968 election and remains so. One suspects that a study today would find it playing an even more significant role.”10

  Tocqueville, it will be remembered, warned of a soft form of despotism that would suffuse society with small complicated rules that would soften and guide the will of man to acceptance of a “servitude of the regular, quiet, and gentle kind.” That, he saw, was not at all incompatible with the sovereignty of the people; it is just that sovereignty, the ability to elect representatives from time to time, becomes less and less important.11

  The effect of such servitude upon the character of the people, Tocqueville saw, could be disastrous.12 It does not seem far-fetched to think there may be a connection between the rise of egalitarian bureaucracies, the proliferation of “small complicated rules,” our sense of guilt, the paramountcy of security among our domestic gods, and the symptoms of enervation and loss of self-confidence that seem to afflict all Western democracies, in domestic matters as well as international. That there is a decline in self-confidence seems plain. It takes confidence in your values to punish for crime, and yet punishment rates in the United States and all of the Western world have declined even as crime rates soared. It takes assurance to enforce community standards of behavior, but, though most of us do not like the fact, pornography has become a national plague.

  If there is a connection, as seems highly likely, then something very ominous and perhaps irreversible is happening to us as a people and as a community. It is disturbing in many respects but in none more so than in relation to the prospects for democratic government. A people without energy and self-confidence runs a greater risk of tyranny, albeit of the soft variety.

  Tocqueville thought he saw a protection against this but it is now proving illusory. Aristocratic countries, he said, abound in powerful individuals who cannot be easily oppressed and “such persons restrain a government within general habits of moderation and reserve.” Democracies contain no such persons, but their role, Tocqueville thought, may be played by great private corporations and associations, each of which “is a powerful and enlightened member of the community, which cannot be disposed of at pleasure or oppressed without remonstrance, and which, by defending its own rights against the encroachments of the government, saves the common liberties of the country.”

  He did not foresee that in an age of egalitarian passion these great institutions might play the role of aristocrats not by succeeding to their power but by sharing their fate. Egalitarians necessarily dislike any center of power other than government. The great private institutions that were supposed to intermediate between the individual and the power of the state are becoming instead the conduits by which government regulation controls the individual. In the process the strength of these institutions is sapped. They do not remonstrate with government so much as seek a truce with it, a truce that never holds for long.

  The great business corporations have long since ceased to seek much more than an accommodation. Now other institutions are being drawn into the web of regulation. Private universities have become unhappily aware of the regulation they accepted when they started taking federal money. The question arises whether any private university or any other institution can live apart from the federal government. Government has devised, as Robert Nisbet points out, new, softer, and less resistible modes of coercion.13 Its motives are sometimes benign, and, indeed, the institutions ask for subsidies or contracts to which conditions will be attached.

  The world proves more resistant to public policy than regulators expect. People can be regulated but the expected results often do not appear. The regulator’s response is to demand more complete control of people and of the social process. Martin Mayer states the progression of regulation in the field of racial equality: “nondiscrimination became equal opportunity became affirmative action became goals became quotas became ‘equality of outcomes.’”14 Non-discrimination, as an ideal, was an objection to government interference in free social processes, but the results were not the expected millennium, and hence the movement, by stages, to equality of outcomes, which, as an ideal, is government objection to free social processes. The same progression may be traced in a variety of fields of regulation.

  The gradual displacement of democratic government by bureaucratic government does not necessarily suggest that the relatively mild and well-intentioned, though insistent, reign of the bureaucracies will be stable. If it is true that bureaucratic egalitarianism suffocates the spirit, and weakens the morale and self-confidence of the community while it saps the strength of intermediate institutions, then it leaves society as an aggregation of individual particles ranged against the state. That kind of society—anxious, insecure, irritated, bored, the people an undifferentiated mass—may perhaps more easily be swept by mass movements joined to populist rhetoric and transcendental principles. Such movements create excitement and a sense of purpose; they promise the restoration of the lost but longed-for sense of community. In a word, a society so reduced is more vulnerable to one or another form of authoritarianism.

  The intellectual class contributes heavily to social guilt, insecurity, and egalitarian policies. It is impossible in short compass to give an adequate impression of the amount of intellectual energy, in both teaching and writing, that is devoted to attempts to prove free economic and social processes so defective that legal intervention is required. Much of the literature is itself so deficient, so palpably illogical and at variance with observable fact, that one must conclude it is the rationalization of prejudice rather than the explanation of positions arrived at by a process of intellection. The weight o
f this intellectual product upon legislative opinion in the middle and upper middle classes is enormous. The effect of it upon the disseminators of popular information and upon policy-makers in government is profound. That is why the alliance or, perhaps more accurately, the congruence of intellectual opinion with populist politics has such a profound impact upon the direction of our society.

  Perversely enough, the spread of secondary and higher education, along with the extension of the suffrage, has reinforced these trends. The complexity of institutions and relationships in our society was never well understood, and the freedom and power of those institutions and relationships rested in no small measure on an unreasoned, awed acceptance of them. The spread of education, particularly university education, has served to decrease that awe without increasing, in the same proportions, the reality of understanding. We are left unhappily in between. Respect founded in ignorance is lost but is not fully replaced with respect founded in sophistication.

  Democratic government requires something that democratic government has badly damaged in the past half century and continues to damage today—civil society. By that is meant the institutions that serve public (as well as private) purposes but are not government—neighborhoods, families, churches, and voluntary associations, to name the ones discussed by Peter L. Berger and Richard John Neuhaus in their influential pamphlet To Empower People.15 What we are talking about are institutions that shape and maintain values; the bridge club is not on the list. These are also institutions that assist people who need assistance, giving charity or advice or consolation or companionship.