by John Marini
The situation today is this: Congress controls the administrative details of politics through the bureaucracy it created, and the judiciary reigns supreme in the realm of politics or regarding general policy matters. In terms of constitutional government, this arrangement has prevented the true sovereign—the American people—from exercising its decisive political role.
The greatest practical task faced by contemporary conservatism, therefore, is to sever the link between the judiciary and the administrative state. But this should not—nor can it—be done by means of the judiciary. A results-oriented court, whether it favors liberal or conservative results, represents, at the most fundamental level, a denial of the consent of the governed. The conservative agenda then requires a return to a proper working of the constitutional separation of powers. And, judges themselves are unlikely to relinquish power under prevailing conditions; indeed, it may be nearly impossible for them to do so. Any fundamental change must be made rather in the political branches of government.
In the latter regard, it is important to realize that Democrats are not responsible for the contemporary court majority. Republican presidents have appointed seven of the last nine justices who have served most recently on the Supreme Court. Those justices have responded to the political environment of the administrative state—a product forged by the Democratic majority in the 1964 election—and no subsequent Republican president has been able to resist the most powerful trends of subsequent Democratic majorities in Congress. Thus, the most important fact of recent American politics is that the Democrats have controlled the legislative branch for nearly all of the past six decades. While it is true that they have been unable to dominate presidential politics for much of the same period, presidential leadership is not required for the successful operation of the administrative state as outlined above. In fact, strong presidential leadership becomes a positive annoyance to that operation.
Democrats have maintained firm control of the House of Representatives since the 1950s, and in 1986 their brief tenure as a minority in the Senate became an aberrant historical footnote. Most importantly, the Democrats in Congress have been able to control the domestic policy agenda by strategic control of the bureaucracy and skillful manipulation of the judiciary. The reason the latter is so crucial has been the failure of the political branches of government and of the political parties to create a partisan consensus on issues of great political or moral significance. The court has stepped in to settle those divisive issues—to the satisfaction of very few, one might add. Thus, from the perspective of congressional Democrats, control of an ideological Supreme Court majority has precluded the necessity of having to win the presidency in order to shape policy on even the most controversial issues. A change in the court majority of the sort Reagan conservatives desire, however, will not result in a similar kind of conservative alliance with the court. At best, a court majority animated by a philosophy of judicial restraint could do no more than prevent the expansion of the administrative state; it would likely only be able to maintain the status quo. For the Republicans, ultimately, the battle for the future will be the battle to shape public opinion, and victory will hinge upon their ability to ratify such public opinion as they have shaped in partisan political elections. This victory would and could only be legitimized by a democratic majority animated by a consensus on fundamental principles.
The massive mobilization of organized groups against the Bork confirmation made clear that what conservatives are up against today is the most widely accepted public philosophy among American elites: interest-group liberalism, or pluralism. At issue was the question of whether the rights of Americans ought to be protected as members of the various groups or classes that make up the nation or whether rights adhere to individuals and ought to be protected as such by the courts. At a more fundamental level, this involves the necessity of determining whether rights are derived from historical circumstances or whether they exist by nature. At stake is the question of who will determine, in an authoritative way, the meaning, or the philosophy, of the Constitution.
Those opposed to Robert Bork were animated by a philosophy of History and an evolutionary theory of law. In their view, the Constitution is a “living document” that must incorporate the changing ideas and mores of each generation. In practice, this means that contemporary elites—or leading intellectuals—will determine the meaning of the Constitution, because they will articulate the leading ideas—or ideology—of each period. The contemporary ideology most acceptable to our elites today, however, rests upon a radical interpretation of the meaning of equality. Indeed, the understanding of equality that animates leading contemporary intellectuals is not different from that of the “economists” described by Tocqueville in the Old Regime and the French Revolution. Tocqueville noted of these eighteenth-century intellectuals that their writings had the democratic-revolutionary tenor characteristic of so much modern thought, for they attacked not only specific forms of privilege but any kind of diversity whatsoever. To their thinking, all men should be equal even if equality spelled servitude, and every obstacle to the achievement of this end should be done away with immediately. For contractual engagements, they had no respect and no concern for private rights.
Similarly, in the view of contemporary intellectuals, it has become necessary to abandon the principle of political equality, not to mention individual liberty, in order to achieve what is for them the only legitimate equality—social and economic equality, equality of outcome or what might be called communal equality.
Originally, the American regime was committed to the protection of the equal political rights of all individuals, based on the assumption that all men were created equal. As a consequence, government encouraged the greatest possible political, economic, and religious liberty as well as social diversity. Although government was supposed to protect rights, it was not to take sides regarding interests, whether of individuals or of groups within society. The significant exception to this rule, one which has plagued America throughout its history, was the protection of the slaveholders’ property interest in fellow human beings. And, it is as a consequence of the fact that this was incompatible with the principle of human equality—and with those principles of constitutional government that flow from it—that the Constitution cannot be defended in terms of its language alone or as simply a legal document. Rather, such a defense must be grounded in the principles underlying constitutionalism itself, which are the essential objects of the enmity revealed by those who attacked Mr. Bork.
Liberal governments, in their origins, were characterized by a fundamental distinction between the state and society, or the public and the private sphere. Because the state, or government, rests on the necessity of using force and society on voluntary actions or private contracts, the sphere of government or state activity was limited. However, this protection of the private sphere necessarily led to economic and social heterogeneity in society. Therefore, those who have come to posit communal equality as the only legitimate form have had to undermine the distinction between the public and the private theoretically and to place their confidence in the state as it operates through the bureaucracy and the courts practically. Subsequently, it came to be believed that all rights are a product of government or the courts. Even the right of privacy, which was originally thought to be secured by limiting the power of government in the private sphere, is now said to exist only when it is enforced by government. What this means as a practical matter is that government’s powers must be essentially unlimited in the private as well as the public sphere. Moreover, “communalists” hold that it must use its powers to benefit those social groups or individuals who are most disadvantaged. These groups must be given special status within the law and protected by the public bureaucracies in order to remedy advantages achieved by others, politically or naturally. In short, only a bureaucratic state can ensure the achievement of equality as they define it.
Ronald Dworkin has designated homosexuals, a
long with any group or “lifestyle” that suffers opprobrium at the hands of society or of a majority, a “moral minority” and, as such, entitled to the greatest protection by government and the courts. In opposing Bork, he cited “the idea of constitutional integrity—that the freedom and dignity recognized for one set of Americans, in one set of decisions, must be available to all other groups with equal moral claim.” He would not suggest, however, that all groups have “equal moral claims.” It is unlikely, for instance, that the Ku Klux Klan is of equal moral worth in his eyes with homosexuals, AIDS victims, or the homeless. But there is no nonarbitrary way to determine the moral worth of groups. It is wholly dependent upon their status within the ideology of the most authoritative elites. There is no reason, in principle, why the most powerful groups, as opposed to the most oppressed, ought not rule in their own interest if they can claim historical or scientific legitimacy. In principle, then, the Dworkin view is not unlike that which animated Nazi Germany or which animates communist regimes today.
When the rights of individuals are not understood as rooted in nature, it is merely the arbitrary will of the most powerful group, ideologically or politically, that determines the rights or moral worth of groups in society. And, by extension, the rights of individuals are only as secure as the status of the group to which they belong. This case demands the attention of the American people. But, while Bork and most of his supporters rallied around the banner of the original intention of the Constitution, their defense of that intention was sapped of its rhetorical and political force because it was merely a defense of the Constitution’s language, not its principles.
Bork has stated: “The effort to create individual rights out of a general, abstract, moral philosophy is doomed to failure from the beginning, because I don’t think there is any version of moral philosophy that can claim to be absolutely superior to all others.” But the framers believed, without a doubt, that the principles of civil and religious liberty, derived from the equality of all men, comprised a moral philosophy that was so superior. Moreover, they thought their arguments for the superiority of constitutionalism, or moderate and limited government, over arguments for government based on force, superstition, religious belief, or the arbitrary will of any individual or group or class of men could be justified in terms of nature and reason and were not dependent upon mere preferences.
By interpreting and explicating an understanding of the Constitution as essentially “positive law,” Bork was unable to make a principled defense of the constitutional order—against those who oppose him only because they oppose it—as fundamentally just. Furthermore, he undermined the most powerful argument in defense of individual rights: the view that those rights depend upon no government, nor upon positive law, for their legitimacy, because they are rooted in the laws of nature. The question then arises: In the absence of reasonable argument, or of any claim to justice, why ought it be preferable for the American people to be ruled by a founding elite, or even a founding majority, rather than a contemporary elite or a contemporary majority?
Bork’s supporters defended him as an advocate of judicial restraint; and as a policy matter, Bork is surely right in his opinion that the Founders intended for the majority to prevail in policy matters. Practically speaking, this means that the legislative branch rather than judges ought to be predominant in the political arena. When it comes to rights, however, as opposed to policy, the Constitution itself is a denial of the view that the legitimacy of law derives from the fact that it reflects the majority’s will. The whole constitutional order, with its separation of powers, is an attempt to prevent domination by the unreasonable will of the legislature as well as of the majority itself. Jefferson made clear what this meant in his first inaugural: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
Bork’s critics understood that the majority is not always mindful of the rights of individuals or minorities, and they look to the judiciary to protect the interests of groups, including minorities. Bork should have insisted that courts must protect the rights, not the interests, of minorities and individuals; that it is only because the court is impartial as it regards interests that an enlightened people are willing to entrust their rights to an independent, unelected judiciary.
Bork needlessly allowed his critics the moral high ground and, on top of that, failed to show that their notion of right or justice is little more than the prevailing ideology of contemporary elites. But, his failure provides a lesson that modern American conservatism itself, and not just Mr. Bork, must draw upon in the future: One need not deny the existence of justice, moral principles, and natural rights merely because one’s opponents cloak misguided arguments in terms of justice, morality, and minority rights. Indeed, doing so is a sure ticket to defeat in our nation. Rather, it is necessary to show that such arguments as were leveled against Bork—arguments of which we have not heard the last by any means—have no basis in reason or nature and thus no legitimate claim to being just; they are rooted in passion—or compassion—and will, rather than reason, and therefore lack the essential element of constitutionalism as our Founders understood and defended it.
The Reagan administration has not tried to hide the fact that it had hoped to leave its longest-lasting legacy through the process of judicial appointments. This is little more than a tacit admission that it has been unable to change the political landscape through the electoral process. Its failure to do so—and its failure in a sense even to attempt to do so, which has given some the impression that the Republican Party has grown accustomed to, if not fond of, its minority status—has in turn proved extremely costly in the waning years of the Reagan presidency. The president’s inability to get confirmation of his leading nominees to the Supreme Court is but one case in point.
In terms of ensuring an enduring legacy, Reagan would have done better to follow the example of Franklin Roosevelt, who, following the election of 1932, created an electoral coalition that proved to be irresistible. A recalcitrant court bucked the Roosevelt tide for a short time after his extremely partisan reelection in 1936. But this presented only a temporary obstacle to the long-term goals of the Roosevelt administration, which set the agenda of American politics for the next half century. Moreover, every Republican president since has had to contend with that legacy in the form of Democratic Congresses and particularly Democratic Houses of Representatives. Viewed in this light, Reagan’s electoral victory in 1980 was but half a victory and short-lived to boot. Reagan was able to help Republicans gain control of the Senate but failed to dislodge the Democrats in the House. And, after the 1982 midterm election—and to a considerable degree even before it—he and his administration backed away from the partisanship, not to mention the animating principles, which had led to 1980s success.
Reagan strategists ran the 1984 election as a rerun of 1972. The goal was to win a huge electoral victory for the incumbent in the White House at the expense of a partisan battle designed to continue the electoral realignment barely begun in 1980. Such an election would have resulted in a necessary polarization of the country, much in the way FDR divided the electorate in 1936. In that election, Roosevelt went so far as to brand the opponents of the Democratic Party as enemies of democracy and of the people themselves. He wanted his party to win all branches of government at every level, and he wanted the great majority of voters to abandon their allegiance to the opposition party.
In 1984, however, the Reagan campaign invited Democrats to remain Democrats while asking them to join in voting for the president. Unlike the partisan appeal of FDR, Reagan did not ask voters to join his party because it had the best principles, or insist that voters abandon their allegiance to the disloyal opposition. Thus, the electoral debacle of 1986 should have surprised no one; likewise, the Iran-Contra controvers
y, and all that it entails, and the fate of the Bork nomination.
There is an aura of tragedy about contemporary American politics. The Democratic Party can no longer openly win a national majority in order to legitimately pursue its policies in the partisan political arena. Rather, it has succeeded in nationalizing what are essentially local concerns, creating in the process a massive executive apparatus to administer those concerns. As a consequence, the interests of the legislature and those of the executive have diverged, regardless of party. Presidents are elected and are expected to govern on the basis of an appeal to general or national issues. Members of Congress are elected on their perceived capacity to satisfy local and particular interests. Furthermore, incumbents of either party in the legislature are able to win reelection by appealing to local or organized constituencies on particular issues, now administered at the national level. At the same time, members have become skilled at obscuring controversial or partisan stands, which are of a general character and of national importance (e.g., their stands on Central American communism). As a result, Congress has the ability to prevent the president from governing on the basis of an appeal to general or national issues. Thus, the national majority has been rendered politically impotent, and the court has stepped in to fill the vacuum with the blessing of Congress. Recent Republican presidents have been successful only when they have been able to mobilize national sentiment sufficiently to force members of Congress to refrain from bucking the will of the national majority. Only in this circumstance is it politically difficult for members of Congress to ignore the president in order to satisfy organized or local constituencies. But, of course, it is difficult to mobilize national sentiment, and it can be done only on a few occasions involving select issues. Ordinarily, the organized interests and the issue networks, in alliance with the bureaucracy, the legislature, and the courts, dominate in the normal affairs of government.