The Artist as Thinker: From Shakespeare to Joyce
Athens, Ohio: Swallow Press, 1983
xii + 499 pp., $32.95 (cloth), $14.95 (paper)
By John Alvis
Professional duties oblige college teachers to look into many carelessly written contemporary works. When one comes upon a recent book that is carefully done, one ought to record one's gratitude and publicize the novelty. George Anastaplo's collection of essays on literary works and literary issues so thoughtfully interweaves writings separately executed over years that the result is a unity of thought and theme governing particulars. The principle of that unity is the idea that the best of lyric poetry, novels, and plays afford the classical virtue of practical wisdom, prudence. Anastaplo's argument is impressive for the diversity of the evidence it organizes on behalf of this idea.
We are used to hearing the claim that poets enable their readers to live better, but not with the claim that better means more prudently. We are more likely to have been taught that poets permit one to escape prudential restraints than to have learned to value them for habituation in the gray virtue. So we may be surprised to discover, from Anastaplo, that Milton's thundering sonnet on the massacre of the Piedmont Protestants controls its indignation with coldblooded artistry while taking care also to suggest that indignation alone does not suffice to grasp the outrage (pp. 62-74). Once we have followed Anastaplo's tabulation of symmetrical stages in Alice's education, we may appreciate the role of prudence in the fanciful curriculum of Lewis Carroll's Wonderland (pp. 166-78). Sensitive readers may find something forced in Mark Twain's depiction of the lynch mob cowed by the unrepentant murderer in Huckleberry Finn. However, I do not recall any other account of Twain's sophistry presented head-on and simply (pp. 179-94). Shakespeare's tragic heroes inhabit a world that does not indulge misjudgment of consequences. Anastaplo's consideration of the effect of tragic imprudence on the plight of Shakespearean tragic figures helps us to see that Shakespeare's plots argue a moral experience that makes sense, a world in which human beings suffer the fates they deserve (pp. 15-61).
Anastaplo's interpretations of individual works proceed from a conviction that successful novels or plays should persuade us of the possibility of conducting a rational life. According to Anastaplo, Melville portrays in Ishmael the first motions of a soul who disengages himself from a romantic war against nature for the sake of contemplating intelligible order (pp. 142-49). In the novels of Jane Austen, he discerns a quiet cultivation of the pleasures of civility and moderation. Anastaplo's special competence is his ability to discover exactly where in a fictional action the presence or the absence of intelligence produces a crisis for the characters. The question what ought the character to have done at such and such a moment gives direct access to the issue of correct decision.
Anastaplo's remarks on Hamlet and Joyce's Ulysses afford the best evidence of the value of this unusual mode of interpretation. The character Hamlet and the novelist James Joyce are dear to modern critics. Both are loved for their combination of brilliance and desperate skepticism. We admire the daring imagination that strikes out against the darkness while it doubts "your philosophy." There may be something sentimental in our sympathy for irrational genius. Anastaplo makes one aware of Hamlet's inability to confront what is intelligible in his situation and to perceive what he owes to his countrymen (pp. 18-20). His analysis of the extravagantly acclaimed Ulysses reveals how Joyce contrives a surface of ingeniously executed details to deflect attention away from a thin subject. Anastaplo's own prudence is evident in his remark that Joyce was unimaginative in his indictment of Dublin as a wasteland. The far more devastating injustices inflicted by criminal regimes after 1914 cause us to regard the Ireland of Dubliners, Portrait of the Artist, and Ulysses as a society relatively wholesome, decent, and vivid. Was Joyce so intensely preoccupied with novelties of form that he lacked political vision?
The Artist as Thinker offers three different kinds of literary criticism: the first part of the book comprises the interpretative essays with which I have just dealt; the second part argues in five essays general principles of interpretation and education; finally, a lengthy sequence of notes carries into fields beyond poetry the thought generated by the readings of the individual works. Anastaplo puts the scholarly footnote to extraordinary uses. One works out a full-dress poem analysis running to several pages (pp. 357-63); another presents the entire curriculum of the University of Chicago's Basic Program in the Liberal Arts, semester by semester, with all the assigned readings! As in his previous books (The Constitutionalist and Human Being and Citizen), Anastaplo so arranges his notes that they establish a common field of reference between the subject he has in hand and all his other scholarly and teaching interests. In this instance the notes make it clear that a complete consideration of prudence would move from the major poets to their counterparts in political philosophy. Consonant with that project, the "Epilogue" deals with Leo Strauss, and the last of the general essays treat topics in political thought and political practice. The final seven essays work out the theory practiced in the preceding interpretations while giving the matter a polemical bite.
My sole reservation regards items of unfinished business. The essay on Moby Dick could go further to indicate more definitely the extent of what Ishmael comes to understand once he has dissociated himself from Ahab's aggression. Similarly, one could wish Anastaplo had expanded upon his tantalizing suggestion that Shakespearean comedy presents a direct image of prudence complementing the portrayal of disastrous imprudence in the tragedies. Most to the point, the tacit proposal of the essays when taken in sequence appears to be that as one moves closer to our own time, one perceives that poets and writers of fiction diminish in practical wisdom. Shakespeare and Milton possess prudence abundantly; Jane Austen for the most part; Twain, Dickens, and Arnold intermittently, but Joyce and such modern poets as John Davidson, T. S. Eliot, and George Seferis, however interesting for other qualities, rarely afford insights adequate to guide practical choice. I should have welcomed a more explicit treatment of the causes of this decline (see, however, the note on modern psychology, pp. 414-17). And especially, Anastaplo should bring that proposition to its best test by devoting a chapter to Solzhenitsyn, the contemporary writer who might make a strong claim to possessing the moral and practical intelligence of earlier writers.
Anastaplo has entered into today's controversy over the nature of literary interpretation by taking his place on the side of the reactionaries. The issue is whether we should continue to seek moral wisdom from poets or give over that inquiry in favor of research into linguistic structure. What I've characterized as the reactionary position opposes the formalism of structuralists and linguists by advocating recovery of sensitivity to the substance of poetry: the thoughtful portrayal of human beings making moral choices. This position has found proponents in some influential spokesmen, notably John Gardner (On Moral fiction), George Steiner (Language and Silence), Jacques Barzun, Sigurd Burckhardt, M. H. Abrams, and Walter Jackson Bate. Moreover, a group of thinkers influenced by Strauss's writings has introduced into literary discussion the natural right teaching of classical rationalism.
To this argument on behalf of interpretation upon moral criteria Anastaplo brings urbanity, learning in the classics of poetry and philosophy, and direct experience of practical politics. Sophistication, together with learning and experience, is persuasive. One realizes that much has been lost to academic professionalism that can yet be recovered by mere lovers of good writing who are willing, as Socrates was willing, to ask of poets what they know about living a good life. Education in the West will produce men capable of steady understanding and proportionate action just to the extent that our schools succeed in releasing the classics of literature from their present captivity to the latest fads of academic nihilism. Anastaplo has made a raid upon the fastnesses kept by literary professionals and has released a few hostages, an accomplishment for which we all have cause for gratitude.
Lost in the Cosmos: The Last Self-Help Book
New York: Farrar, Strauss, & Giroux, 1983.
262 pp., $14.95
By Steven Hayward
It is a disastrous discovery, according to Emerson, that we exist: disastrous, because our own consciousness comes as such a puzzle at times. It is the gift of consciousness that marks man's distinctiveness from all other animals, but the exact nature of that distinctiveness is elusive. Man is the only animal who laughs and smokes, a cheerful observer might point out, while the dour-minded Dostoyevsky remained transfixed by his perception that man is the only animal bent on his own self-destruction.
That man is a complex creature-poised halfway between the beasts and the gods, endowed with speech and reason-is of course not a new observation. Modern literature has developed a new genre that takes as its subject the "alienation" of man. Alienation, man's homelessness in his own world, has become the bane of literature and the cornerstone of many modern ideologies. Walker Percy takes alienation as the focus of his writing, but not in the reductionist sense of the Marxists or Freudians, nor in the gratuitous manner of New York parlor existentialists who bemoan their lack of meaning while getting rich on their second-rate novels. Percy's jaundiced view of popular trends and run-of-the-mill "alienation" set him apart from most modern writers whose overblown seriousness prevents the least admission of humor. Indeed, Percy's latest, Lost in the Cosmos: The Last Self-Help Book, combines serious themes with some well-aimed jibes at the "naive scientism" of Carl Sagan as well as the entire self-help industry, with its guides to surviving "mid-life crises" and other passages of life.
For Percy, man feels homeless in his own world not for materialist reasons (Marx), or because of fragmented consciousness (Freud), or because of the meaninglessness of the abyss (Sartre), but because each of us does not understand himself. The modern scientific enterprise of the "relief of man's estate" is not at hand, nor is it on the horizon. Modernity's quest to conquer nature, it seems, has failed on the simplest level. Man is not, as was hoped, better for modern science, rather he is miserable. Percy takes the epigram to Lost in the Cosmos from Nietzsche, "We are unknown, we knowers, to ourselves. . . . Of necessity we remain strangers to ourselves. . . ." As a result, the course of modernity is toward not greater self-knowledge but toward even less self-knowledge. In fact, modern scientific method-Percy calls it the "objective-empirical method"-is itself a force for increased alienation. "Every advance in an objective understanding of the Cosmos," he writes, "and in its technological control further distances the self from the Cosmos precisely in the degree of the advance-so that in the end the self becomes a space-bound ghost which roams the very Cosmos it understands perfectly" (p. 12).
Percy goes to great lengths to assure the reader that he is not a neo-Luddite out to make a frontal assault on science and technology. (Recall that Percy was an M.D. before he began writing.) Percy protests the necessary abstraction of the scientist from the natural phenomenon studied: Modern science tries to conquer human nature through the same means it uses toward the rest of nature, by objectifying man, but it has only resulted in controverting reality and denying consciousness. When the psychologists and therapists study the human psyche and break it down into so many "needs," the result is not greater self-knowledge but increased abstraction, or alienation, from the self. Percy suggests in his essay "The Man on the Train" that there is no more ideal candidate for suicide than someone who attempts to follow the prescriptions of the mental health savants.
This irony within triumphant modernity forms the subject matter for Percy's fiction: technology has largely succeeded in conquering nature and meeting man's basic needs, yet man feels more homeless than ever. The protagonists of Percy's novels (Binx Bolling, Tom More, Will Barrett) are always extreme caricatures of alienated man and, borrowing from Flannery O'Connor, Percy points out that when writing for the near-blind one must draw very large caricatures.
Percy's characters and plots are not simply large; they are outrageous. The protagonist of Love in the Ruins, Thomas More-yes, a descendant of Sir Thomas More, author of Utopia-is the confident inventor of the "Ontological Lapsometer," a "stethoscope of the human spirit" that can diagnose and cure the troubled patches of our brain that divide and disorient our consciousness. Never mind that Dr. More is himself a basket case, both an outpatient and a resident psychiatrist at the same mental institution. Published in 1971, Love in the Ruins is set in 1983 and invokes the specter of the Orwellian year, with its connotations of heightened order and rigid bureaucratization. But Love in the Ruins pulls a reversal on 1984; rather than strict order, there is complete chaos. The auto age is over, vines sprout on the streets and buildings of our major cities, and wolves have been seen in downtown Cleveland, "like Rome during the Black Plague." The United States is divided along sectional and factional lines.
Life, however, goes on much as usual for most Americans. Golf continues in suburbia, while Left and Right have become more psychological types than political persuasions. The end may be at hand: potentially toxic fallout clouds are drifting about in the atmosphere. And here stands Tom More with his Ontological Lapsometer ready to cure all manner of neurosis and phobia and finally usher in the Utopia that eluded his distinguished ancestor. Yet, no one seems to take much notice of either the chaos around them or the need of Ontological wholeness that More offers to fulfill.
It is not so much that More, the scientific Utopian who cannot understand himself in the end, resembles Chicken Little as much as the fact that Percy's peripheral characters seem so lifeless. His main characters are always more aware of their predicament, and being aware of their alienation, they achieve a measure of transcendence. Most, however, are unaware of their estrangement from themselves. The epigraph to The Moviegoer comes from Kierkegaard: ". . . the special character of despair is precisely this: it is unaware of being despair." There, Binx Bolling, recognizing his despair, confesses that "for a long time now the impression has been growing upon me that everyone is dead. . . . It happens when I speak to people. In the middle of a sentence it will come over me; yes, beyond a doubt this is death."
Will Barrett (The Last Gentleman; The Second Coming) comes to the same perception in the latter novel:
In a strange new mood he made the following observation: people notice very little indeed, ghost-ridden as they are by themselves. You have to be bleeding from the mouth or throwing a fit for them to take notice. Otherwise, anything you do is no more or less than another part of the world they have to deal with, poor souls.
Most of us, Percy suggests, have dead souls at best; not even the appearance of Christ Himself would cause a shock. The more adept among us drift along in the grip of "everydayness," while the more acute, like Percy's heroes, recognize their alienation and
are, as it were, in perpetual crisis.
To be sure, Percy makes it clear that this alienation is largely unique to modern, affluent, profanized man. Recalling Steinbeck, Percy observes that "the Okies were too hungry to have 'identity crises.'" But, "what happens to the Okie who succeeds in Pomona and now spends his time watching Art Linkletter? Is all well with them or are they in deeper trouble than they were . . . in the dust bowl?" (The Message in the Bottle).
The problem of modernity as Percy sees it is that the moment of man's conquest of nature is also the moment he runs completely out of meaning; man arrives at the ultimate estrangement from his own nature because his own nature cannot be explained and manipulated in the same technological manner as the rest of nature. To explain this difference between human nature and the nature of everything else, Percy has come to embrace semiotic theory. His first nonfiction collection, The Message in the Bottle (1975), contained several essays on semiotic theory. Lost in the Cosmos contains a short, simple introduction to semiotics, a study of signs and symbols as they impart meaning.
Developed by Ernst Cassirer, Charles Pierce, Susanne Langer and others, semiotics can be vastly complicated, but for Percy this is crucial: While the signs and symbols for objects in nature have an intrinsically understood commonality (essentially the Aristotelian notion of the "common noun"), the "self" as symbol has no such corresponding commonality. As Percy puts it: "This is a chair for you and me, that is a tree, everything is something, you are what you are, but what am I?" (The Message in the Bottle, p. 284).
The twenty extended questions of the "self-help" section of Lost in the Cosmos are designed to illuminate the various facets of selfhood, the assorted modes people tend to assume in answering the question "What am I?"-all of them, Percy insists, are unsuccessful. Many of the answers Percy supplies show rare insight; many others are overwrought and exaggerated. This and the whole "twenty questions" format tend to make the book a bit uneven, though it is still well worth reading. The reader will laugh out loud at his send-up of Phil Donahue, and his cosmic space adventures, inspired by Carl Sagan's search for extraterrestrial intelligence, are first-rate satire. C. S. Lewis once speculated that the vast distances between objects in the universe might be God's quarantine against sinful man. Pursuing the same thought, Percy suggests that any superior extraterrestrial intelligence will avoid us like the plague.
Percy offers no remedies. For him, Christendom and modernity alike have run their course and are equally bankrupt. There is seemingly no going "forward" or "back." All choices are bleak. But for Percy, who joined the Roman Catholic church, there is Grace. Mysteriously enough, it is Grace that Percy holds out to us in his novels and in the end of Lost in the Cosmos. And because Grace is a divine mystery, Percy does not presume to explain it.
THE FIRST MONDAY IN OCTOBER
The opening of the Supreme Court's 1983-84 session on the first Monday in October should prompt citizens to scrutinize the work of this increasingly powerful branch of government. Dennis J. Mahoney reflects on the important opinions of its last term, while Jonathan K. Van Patten examines two influential works arguing for an even stronger Court. Both raise the question whether the Court has exercised its power wisely.
The Supreme Court Reporter, vol. 103
Warren E. Burger, et al.
St. Paul, Minn.: West Publishing Co., 1983
1000 + pp., no price available.
By Dennis J. Mahoney
Each year there is published a new volume of a textbook on American political theory and practice. The textbook is written by a committee of nine members, and the committee convenes on the first Monday in October each year to begin drafting the next volume. The committee comprises persons of undoubted qualifications: Each is an attorney, several have advanced degrees besides their law degrees, all have a record of government service. And yet, the product is seldom entirely satisfactory.
The textbook to which I refer is the collected opinions of the Supreme Court of the United States. It is a volume devoted to explicating the Constitution through its application to the problems of particular individuals on the basis of facts and arguments established through the vagaries of the litigation process. Its premise is that, alone of all the citizens of the Republic, the nine men and women who gather the first Monday of each October on the bench of the Supreme Court speak authoritatively on the meaning of the Constitution.
The current volume in this series is representative of those published in recent years. The volume comprises a jumble of not-quite congruent accounts of the Constitution as produced by subcommittees of varying membership, as the Justices form and dissolve shifting alliances. To be sure, there are alignments that are enduring, if not permanent: William Brennan and Thurgood Marshall are almost invariably teamed up on the left, and William Rehnquist and Sandra O'Connor on the right. In 40 cases decided during the 1982-83 term by votes of 5-4 or 6-3, each of those pairings occurred 36 times. Chief Justice Burger and Justice Powell most often join Rehnquist and O'Connor; Justices Stevens and Blackmun most often join Brennan and Marshall. Justice Byron "Whizzer" White has become the permanent swing-voter.
The Supreme Court does more than adjudicate constitutional questions. It is also the highest appellate tribunal for matters involving federal statutes. A large part of its workload consists of interpreting federal tax, labor, antitrust, communications, and other law. Chief Justice Burger spent much of his off-the-bench time during the 1982-83 term advocating and lobbying for the creation of a new federal appeals court to relieve his panel of that part of its workload.
But it is as interpreter of the Constitution that the Supreme Court most directly shapes the regime, this nation's way of life. For the first 100 years of our national existence under the Constitution, the Supreme Court was one of three coequal branches of the national government. To be sure, in the adjudication of cases and controversies properly before it, the Court had the final say about the meaning of our fundamental law. But that right to the "final say" was shared with the President, who interpreted the Constitution in the pursuance of his executive functions, and with the Congress, which interpreted the Constitution in the course of legislating. Only in our own century did the Supreme Court become the sole and definitive interpreter of our national charter.
This is not to say that the Court has usurped some of the power of the coordinate branches. Rather, to a large extent, the political branches of government have abdicated their responsibility, preferring to have the Justices take the heat when public opinion fails to coincide with constitutionality. But Charles Evans Hughes's ironic remark, made when he was Governor of New York, that the Constitution is whatever the judges say it is, has been transformed in recent years into the highest principle of constitutional law. So firmly is the Court's role as ultimate arbiter of the Constitution now established that when, for the first time, in 1958, the Court declared that its own decisions were the Supreme Law of the Land, the event passed almost without notice.
This transformation of a court of law into a permanent constitutional convention introduces certain disadvantages into the political system. The greatest disadvantage is that fundamental questions concerning how and by whom we are to be governed are answered, oracularly, in cases involving the accidental interactions of individuals and groups. The Constitutional Convention of 1787 may not have been the assembly of demigods that Thomas Jefferson proclaimed it, but the Framers of the Constitution gathered at Philadelphia to produce a framework of government through deliberation on great public questions. The Supreme Court alters that framework through deliberation on all-too-petty questions. The Court obtained the status of constitution-maker by its own ambition and by the weakness of will of the political branches. It has been sustained in that role by the efforts of two generations of intellectuals (in the universities and in the press) who dislike politics and distrust democracy. But the fact is that the Court is ill-suited to the role, and the judicial process is probably the worst imaginable for constitution-making.
In the course of deciding the cases and controversies that come before it, the Court annually encounters anew the principles of the regime. But the circumstances of the encounter-appellate review of cases decided by other courts on the basis of evidentiary records compiled by attorneys-are not auspicious for the judicious, or even consistent, application of those principles. An example from the 1982-83 term shows not only how true this is but also how little the Court has learned about its relationship with those principles in the course of a century and a quarter.
Our most fundamental constitutional document, the Declaration of Independence, declares that government exists to secure the natural rights of human beings, including the rights to life, liberty, and the pursuit of happiness. In the Bill of Rights, the Founding generation provided that the federal government might not deprive any person of life, liberty, or property without due process of law (i.e., in general, without first convicting that person of a crime). After a bloody and terrible Civil War, the people extended that prohibition to the state governments by the Fourteenth Amendment.
Except for a brief period at the beginning of the present century, the Court has found precious few individual liberties worthy of protection against government depredation, whether at the federal or the state level. The two due-process clauses have been virtually stripped of their original substantive meaning and turned into catchwords for procedural technicalities. Indeed, if the government prosecutes you for a crime, the procedural shadow of the due-process clauses may well preserve your liberty and property; but if, instead, the government merely legislates away your property or restricts your liberty by executive regulation, then the clauses are, under most contemporary decisions, of no comfort to you.
In a revival of the doctrine of Lochner v. New York, a 1905 decision apparently repudiated by the Court during the New Deal period, the Court has held that state interference with at least one newly discovered liberty contravenes the due-process clause. A series of cases decided during the 1982-83 term, of which the leading case was City of Akron v. Akron Center for Reproductive Choice, reaffirmed the Court's abortion decision of ten years ago. Under the new decisions, the states may no longer prohibit abortions during the second trimester and are severely restricted as to the degree of regulation they may impose. State interference with abortion, the Court has held, deprives the prospective mother of liberty without due process of law.
That the Court has decided once again to accept the responsibility of enforcing the substantive guarantees of the "due process" clauses should be a cause for rejoicing. But the Court has been trapped on the horns of the same dilemma that was posed by Dred Scott v. Sanford in 1857. In Dred Scott, two interpretations of substantive due-process protection contended. Scott himself claimed that if federal law permitted him to be treated as a slave in the federal territories, then it deprived him of liberty without due process of law; the slavemasters claimed that if federal law set Scott free, then it deprived them of property without due process. To resolve the controversy in favor of slavery, Chief Justice Taney had to rule that blacks were not persons under the Constitution. Similarly in the abortion cases: If an unborn child is a person, then the Court's discovery of a constitutional "right to abort" deprives that person of life without due process of law; the mother's substantive right becomes an object of constitutional protection only if the child is not a person. Justice Blackmun, in Roe v. Wade, resolved the dilemma by ruling that unborn children are not persons under the Constitution.
The Court's encounter with constitutional principles occurs also at the level of the allocation of government power. The Founding Fathers, unwilling to rely on public virtue alone to secure individual liberty against the concentration of government power, devised a system of separation of powers mediated and enforced by checks and balances. Over the nearly 200 years since the Constitution was written, the balance of power has shifted many times between the various branches and institutions of government.
The expanded role of the Court is the most significant alteration in the balance of constitutional power to occur in this century. The Court, during the 1982-83 term, spoke on the next most significant. It may well be that the decision in Immigration and Naturalization Service v. Chadha will have the greatest impact of any of the decisions rendered last term. In that case, the Court struck its first blow against the so-called "legislative veto."
Guided by the separate opinion of one of the Justices, the press immediately declared that in Chadha the Court had held unconstitutional every application of the legislative veto. But it is not evident that that was, in fact, the situation. The veto in Chadha was a one-house negative over the adjudicative discretion of an administrative tribunal in a particular case. It was a most atypical use of the device in question. Such is the nature of the judicial system, however, in which the great issues of constitutional controversy are determined within the context of private cases and controversies, that the Chadha case has, at the least, overcast much of the daily administration of the government with a cloud of uncertainty.
The departments of the executive branch and the independent regulatory agencies exercise a great deal of power that is delegated to them by Congress. That is, in the promulgation of rules and regulations with the force of law, they are exercising legislative power. Congress may delegate or not delegate its power; it may provide guidelines for, or impose restrictions on, the exercise of the delegated power. But Congress cannot transform legislative power into executive power merely by delegating it to an officer or agency of the executive branch. When an executive official promulgates a regulation, he is doing what it would otherwise take both houses of Congress (and the approval of the President) to do. It is not unreasonable, therefore, for Congress to provide that such regulations should be suspended in their operation until Congress considers them and that one or the other house might prevent the regulation having the force of law by indicating that they would not have that house's concurrence.
This, indeed, is the most common form of the legislative veto, but it is not the form of the legislative veto invoked in the Chadha case. Therefore, it may be that other forms of the legislative veto will survive judicial scrutiny in the future. The political process, rather than the judicial process, will probably resolve the question in the case of the War Powers Act, but James Watt's defiance of the legislative veto of coal-lease regulations may provide another opportunity for the Court to decide between the executive and legislative branches.
There is no reason to be sanguine about the prospects for legislative control over the bureaucracy. The Court in the 1982-83 term deferred to bureaucratic independence of political control. Such independence is a feature of the new separation of powers invented during the Progressive Era and imposed during the New Deal, according to which the power of administration of government is separated from the power of political decision-making. The most shocking (although not especially surprising) case decided during the 1982-83 term was Bob Jones University v. United States.
The Commissioner of Internal Revenue had determined, without statutory authority, that certain policies of a small, denominational college, adopted in accordance with rather idiosyncratic interpretations of scripture, contravened a national public policy against racial discrimination. The Court refused to allow the Justice Department to withdraw the case, appointing a private attorney to argue what the Attorney General would not, and then decided in favor of the Internal Revenue Service. The decision seems to cloak the IRS with power to manipulate the tax laws to enforce general public policy independently both of the legislative and executive branches. Moreover, that power may apparently be used to withdraw tax immunity from religious groups that act on the basis of doctrines (e.g., proscription of abortion in church-owned hospitals) that do not coincide with certain public policy preferences.
The Constitution prohibits the government both from establishing a religion and from interfering with the free exercise of religion. To the Founding Fathers, who imagined that they had created a government of limited aims and limited powers, the possibility of conflict between these two provisions must have seemed remote indeed. However, as the growth of governmental power has pushed back the boundaries of the private realm, the potential for conflict has increased dramatically. Three important cases decided in the 1982-83 term touched on the relationship between government and religion.
In Larkin v. Grendel's Den, decided early in the term, the Court found an establishment of religion in a New York law that prohibited the granting of liquor licenses to establishments within 500 feet of a church or school unless the church or school waived its protection. To the Court it seemed that this impermissibly involved churches in the governmental process-in this case, the decision whether to license a tavern. Incredibly enough, the Court had no difficulty in so deciding; in fact, only Justice Rehnquist denied that the law created an establishment of religion.
Among the last cases decided in the 1982-83 term was Marsh v. Chambers, in which the Court held that the Nebraska legislature's employment of a chaplain, paid at public expense, did not constitute an establishment of religion. The Marsh opinion, like that in Larkin, was written by Chief Justice Burger. While it is difficult to imagine that the Founding Fathers, who appointed Bishop White as chaplain to the Constitutional Convention, would have regarded Nebraska's chaplaincy as an establishment of religion, it is more difficult to reconcile Marsh with the Supreme Court's understanding of establishment as represented by Larkin. These cases again show the problematic character of constitution-making on a case-by-case basis.
The third religion case, Mueller v. Allen, best exemplifies the way in which the religion clauses have been twisted by judges and lawyers. Most of the establishment clause cases decided by the Supreme Court have involved the religious education of children or the education of children in religiously affiliated schools. At issue in Mueller was a state law permitting the parents of private school pupils to deduct a portion of the tuition expense from their gross income in computing state income tax liability. Opponents of the provision argued that most private school pupils in the state attended Roman Catholic schools and that, therefore, the tax deduction disproportionately benefited the Roman Catholic Church. The case was decided, 5-4, in favor of the parents, Justice Rehnquist writing the majority opinion. The liberal bloc-Brennan, Marshall, Blackmun, and Stevens-lined up solidly against the tax-deduction provision. The most alarming aspect of the dissent is the notion that any private income not taken in taxes is a class of public expenditure: in effect, all the income and wealth of the country is at the disposal of the government, and any that is retained by the individual constitutes a government grant.
Twenty years ago, the Court plunged into the political thicket of legislative apportionment and has not extricated itself since. Two cases decided the same day during the 1982-83 term leave the constitutional standard (one-man, one-vote) as unclear as ever. In Karcher v. Daggett, the Court held that New Jersey's apportionment scheme did not meet the standard because, although the difference in population between the largest and smallest districts was less than one percent, a scheme with an even smaller difference was possible. But in the next case, Brown v. Thompson, the Court upheld a Wyoming apportionment plan providing that every county would have at least one representative, although the resulting difference in population between the largest and smallest districts was 89 percent. Although both cases were decided on 5-4 votes, three justices changed sides between the two cases. After two decades, the meaning of the "one-man, one-vote" standard remains unclear.
The capital punishment cases of the 1982-83 term, of which Barefoot v. Estelle is the leading case, demonstrate, if nothing else, the handicap under which conservative jurisprudence operates in the contemporary American judicial system. An older understanding of how the Courts are supposed to proceed holds that issues once decided remain decided (until the Constitution or statute is amended), and that earlier cases form the precedents according to which later cases are decided. This older understanding is embodied in a doctrine called "stare decisis," a doctrine which is essential to conservative jurisprudence. A recurring feature of opinions by conservative or centrist justices is a judicial attitude that might be expressed: "I disagree with the decision in the earlier case, but that decision is now the law and must be followed." Justices Harlan and Stewart often took that line, and Justices Powell and White, at least, do so now. But the liberal bloc does not feel bound by stare decisis, and is willing to overrule or disregard precedents if it believes they are out of date. There is no better illustration of this attitude than the Brennan-Marshall opinions in capital punishment cases, which put forward the position that the death penalty, in and of itself, is cruel and unusual punishment, although the majority has consistently held otherwise.
As this article goes to press, the Supreme Court has reassembled in Washington and is about to commence its 1983-84 term. The result will be, next summer, a new volume in the definitive series of textbooks on American government. Can we have confidence that the authors' committee will do a better job this year? Not if the record is to be relied on. This term, as last term, the picture of our constitutional system will be muddled and unclear, principles will be tortured to fit the peculiar facts of particular cases, and shifting majorities will provide no guidance to those who would proceed in accordance with constitutional law.
Let the Trumpet Sound: The Life of Martin Luther King, Jr.
Stephen B. Oates
New York: Harper & Row, 1982
550 pp., $18.95 (cloth), $8.95 (paper)
By Kimberly Shankman
Most writing about Martin Luther King, Jr., does him a great disservice: It emphasizes those strands of his thought which are alien to American political life, at the expense of those which are rooted in it. No doubt this is done with a laudable intention-to make King's greatness seem not to lie in his tradition but in himself-yet the effect is to make King seem threatening or hostile to America.
Stephen Oates's new biography of King, Let the Trumpet Sound, tends in the same direction. Fortunately, the comprehensiveness of this well-written and extremely readable biography enables the discerning reader to check this tendency. One still finds, however, that more attention is paid to the influence of Gandhi and others outside the American political tradition than to those within it. For example, in his lengthy treatment of King's "Letter from Birmingham City Jail," Dates quotes King's reference to "the Jewish philosopher Martin Buber," yet does not refer to the immediately following discussion-intended by King to clarify his reference to Buber-of the fundamental American concept of the rule of law (p. 225). (Even more telling, in this context, is the fact that the index to this book does not even list the Declaration of Independence, although King referred constantly to it.)
In addition to Gandhi, Dates emphasizes the influence of Hegel, whom King studied as a graduate student, and of the theologian Reinhold Niebuhr. It is obvious that King was, in fact, influenced by the thought of these men. Yet it is equally important to realize that King was not attempting to replace American principles with a distillate of Gandhi and Hegel.
King loved America; he saw his movement as a way to fulfill the promise inherent in American democracy. Even near the end of his life, when his rhetoric had hardened and he tended to emphasize the injustices he perceived in American politics, he never repudiated his commitment to what he called "the American dream." In a commencement address at Lincoln University in May 1968, he described that dream:
It is a dream of a land where men of all races, of all nationalities, and of all creeds can line together as brothers. The substance of the dream is expressed in these sublime words, words lifted to cosmic proportions: "We hold these truths to be self-evident-that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness."
King was striving for a fulfillment of the promise of equality. The tactics of nonviolence and civil disobedience were mere means. The ends toward which those means were directed were provided by the Declaration of Independence, which King described as "a promissory note to which every American was to fall heir" (p. 259). It is only by keeping this point in mind that the moral force of King's approach is comprehensible.
It was precisely this point that the "Black Power" and separationist critics of King missed. For example, Malcolm X criticized King's use of the Gandhian tactics of nonviolence, arguing that they were inapplicable in America since "Gandhi was a big dark elephant sitting on a little white mouse. King is a little black mouse sitting on top of a big white elephant" (p. 251).
Malcolm X did not understand, however, the moral persuasiveness of the principles of the Declaration of Independence in American political life. Thus he misunderstood the ultimate strength of an appeal to those principles-regardless of the size of the group doing the appealing.
The relationship between the principle of equality and King's doctrine of civil disobedience is made manifest in King's famous "Letter from Birmingham City Jail." King responded to the criticism that civil disobedience was a kind of anarchy by going to its basis. First, King argued, following Augustine, that "an unjust law is no law." Segregation laws are unjust because-using Buber's terminology-they substitute an "I-it" relationship for an "I-thou" relationship. This is simply an abstract relating of the Declaration's principle of equality. The essence of equality is the recognition of common humanity, a recognition inherently denied by segregation laws. The second part of King's argument was that the rule of law depended upon the principle of equality. The rule of law is the radical principle of equality made conventional or legal; i.e., that all should be equally governed by the law. If a majority makes laws which are not binding on itself-laws which do not apply to those who make them-then it is that majority, and not those who disobey such laws, who are subverting the idea of the rule of law. The greatest proponent of the rule of law, Abraham Lincoln, stated precisely this point: "When the white man governs himself, that is self-government; but when he governs himself and also governs another man, that is more than self-government-that is despotism" (speech at Peoria, Illinois, October 16, 1854). Thus, we see that King's civil disobedience was not anarchy but the highest form of citizenship. King broke the law to preserve the law.
King was performing one of the fundamental tasks of a democratic statesman-the education of public opinion to the meaning and requirements of democracy. But King was not a statesman. His followers were united by their attachment to civil rights. King did not have the challenge of dealing with a diverse constituency containing fundamentally competing interests. The compromises and delays of the political process were disheartening to King, and finally embittering. He began to lose faith in America.
Nowhere is this more clearly seen than in King's opposition to the Vietnam War. Some regarded this opposition to be imprudent because it alienated those (most notably Lyndon Johnson) who were friends of civil rights but opponents of the antiwar movement. But this opposition was fundamentally imprudent in that it vitiated the principles of the civil rights movement itself.
Unlike the civil rights movement, the antiwar movement was not based on the fundamental democratic principles of equality. The antiwar protesters appealed to a variety of principles-sometimes unarticulated, occasionally incoherent. Some opposed the war on grounds of general pacifism, others because they thought there was something uniquely immoral about this war. Some were opposed to "U.S. imperialism," others simply to "hysterical anticommunism." By lending his great influence, as well as the tremendous moral authority of the civil rights movement, to the antiwar protesters and condoning their brand of civil disobedience, King was sanctioning something very different from the tactics used in Montgomery and Birmingham. There, King's civil disobedience was directed at exposing and removing laws which were destructive of the principle of equality, and so the rule of law. The civil disobedience of the war protesters, however, was directed at attempting to force their wishes on an unwilling majority. In this case, King lent his sanction to the use of civil disobedience as an alternative to-not a support of-democracy. This idea of civil disobedience is essentially anarchy. It means that whenever one finds policies not to one's liking, one may use any convenient means to have them overturned. The rule of law, of course, requires that minorities obey laws passed by majorities, however distasteful they may be-given the premise that those minorities may persuade their fellow citizens to accept their view, and so become the majority. In thus opposing the war in Vietnam and supporting the antiwar protesters, King abandoned the justification for civil disobedience expounded in the "Letter from Birmingham City Jail" in favor of a kind of rootless civil disobedience, or at best a justification of civil disobedience grounded in some inchoate idea of justice not necessarily shared by his fellow citizens.
To say that this foolishness tarnished King's greatness is not to gainsay his merits. He ranks as an American hero: first, because he fought courageously to remove the great blight of segregation from our national character; second, because his life was dedicated to making manifest "the American dream," a glory and a vision which transfigures all Americans.
CONSERVATISM SEARCHES FOR PRINCIPLES
American conservatism has achieved a respectability for itself greater today than at any time in the last fifty years. This is partly due to the failures of its rivals on the left and partly because of the success of conservative politicians. But conservatism evidently remains a body without a head. What is it conservatives want to conserve? What vision do they have for America?
No one reflects the increased respectability of American conservatism more than George F. Will, author, syndicated columnist, and television commentator. But Will's latest book, Statecraft as Soulcraft, has yet to receive a favorable review in any conservative journal. Dennis E. Teti's review essay attacks Will on different grounds. The Review asked David Green, who has followed Will's work for some time, to respond to Teti. Finally, Richard L. Williams indicates how problematic is the endeavor of another conservative, Burton Yale Pines, in Back to Basics.
Statecraft as Soulcraft - What Government Does
George F. Will
New York: Simon and Schuster, 1983
186 pp., $13.95
By Dennis E. Teti
In choosing a journalist to deliver the 1981 Godkin Lectures, Harvard University selected one of the very best-George F. Will, who has expanded those lectures into this, his first full-length book. Like his widely syndicated, Pulitzer Prize-winning columns, collected in his Pursuit of Happiness and Other Sobering Thoughts, this work contains political insights showing that a journalist and television commentator (ABC) can be both elegant and thoughtful. Thus Will (Ph.D., Princeton) is in an extraordinary position to edify a vast audience. Unfortunately, this great potential for public benefit merely intensifies our exasperation at the ultimate failure-indeed the folly-of Will's case for an American brand of "European" conservatism.
Nearly awash with quotations from the great thinkers, Statecraft as Soulcraft's argument for conservatism reflects an exceptional literacy with the great books. Familiarity with themes of Leo Strauss and some of his students, notably Martin Diamond and Walter Berns, can be discerned. In particular one notes Will's appropriation of Strauss's framework of the ancients versus the moderns, of those who sought to promote virtue versus those who were concerned with "keeping order and keeping power" (pp. 23, 24, 27 ff.). Whether Strauss would have been entirely satisfied with Will's use of his teachings is another question.
In his central chapter Will articulates his great theme of man's "second nature"-the habits and customs binding citizens into one community. It is this second nature which is said to be threatened by the American neglect of morality and character development in the law and politics. Here is the crux of Will's political teaching: statecraft, or government, is in its very essence "soulcraft," or cultivation of civic character. Government is unable to prevent itself from affecting the souls or character of men; government can only choose the types of character it should encourage and discourage. In showing the inseparability of morality and politics, Will performs an invaluable service for his audience, much of which assumes the discreteness of the two concerns.
American politics, however, lacks an awareness of its capacity as soulcraft. In Will's view, this lack derives from James Madison and the other Founders, who concentrated on a low self-interest as the basis for the American way of life, and thus undermined the American character and the ability to maintain our way of life.
Will wants to overcome the neglect and erosion of civic character by establishing a new kind of conservatism (p. 12). It would be of a "European" variety; its paradigm is Edmund Burke (p. 146). (I count 22 page references to Burke, more than any other philosopher, Madison excepted.) It is characterized by "degree," "proportion," "custom," "priority," and so on; i.e., by a stress on hierarchy and a kind of moderation. ("Up to a point" is Will's favorite expression [p. 93], as readers of his columns know.) Will's conservatism appears to be at furthest remove from the kind of revolutionary politics marking the era from the War for American Independence through the Convention of 1787. In Will's formulation, Burkean conservatism is related to the Founding somewhat as Aristotelian virtue is related to the extreme vices between which it is a mean.
But Will disregards two facts about Burke: he was a friend of the American Revolution and a follower of Adam Smith's economics. Reserving the economic emphasis for later, I will now elaborate on Will's divergence from the Founding.
Will is not a friend of the American Revolution or the Founding Fathers. We might be tempted to praise his forthrightness in admitting that his "argument comes close to filial impiety" in a nation notable for its reverence for its Founding Fathers (pp. 167-68). But, like Machiavelli, Will conceals his audacity behind his audacity. He opens his argument saying that the "thinkers" on whose thought the Founders constructed the Constitution defined the tasks of politics in "inadequate" and "dangerous" ways (p. 18). What is more, "liberal democratic societies," i.e., all of them (a fortiori, the United States), are "ill founded" (ibid.). The "inadequacy" of liberal democracy is "glaring" by now (p. 23). It consists in a radical lowering of politics "to the strongest and commonest impulses in the mass of men" instead of concerning itself with "the best persons and the best in persons," as Aristotle taught (p. 24). Liberal democracy replaces the concern for virtue with a reliance on self-interest, and undermines the political community in the name of a radical individualism. Of the Founding Fathers par excellence, Jefferson and Madison, he says of the author of the Declaration that his "robust rhetoric of self-evidence . . . seems anachronistic" (p. 50), and comes perilously close to calling the Father of the Constitution a fool (p. 156). If conservatism implies devotion to the Founders and the principles of the Founding, Will's teaching is the opposite of any normal understanding of the term.
By describing the pursuit of happiness as a "sobering thought" (in the title of his first collection of columns), Will associates himself with the neoconservatives, who regard the American Revolution as a "sober" revolution-a revolution that did not make a radical break with the political order of old Europe. It is not surprising that Will describes "the traditional conservative function" as "judging and editing the social transformation that comes with the dissolution of old forms and modes of action" (p. 119). This type of politics ought to be named "clean-up crew conservatism," for it limits itself to criticism of social transformations that have already taken place. But this kind of conservative politics as a matter of principle cannot provide leadership that gives any direction to the course of social transformation.
Not a page after quoting George Washington that the American "Empire" was founded in a clear understanding of "the rights of mankind," Will terms the Revolution a "rebellion in defense of traditional rights"; that is, the rights of Englishmen (pp. 99-100). Between Washington's clarity and Will's confusion there lies the difference between a democratic regime founded on natural rights and an aristocratic order based on class distinction. Will, accordingly, called "the pursuit of virtue" a "Tory notion" in the title of his second book, and thus a New Republic satire granting Will the appellation of George III was not off the mark in this respect.
Will elevates Hamilton above Jefferson and Madison as the Founding Father (p. 106). He implies thereby that Hamiltonian commercialism is the real basis or substructure of American society, anchoring the ideological superstructure of Jeffersonian democratic "idealism."
As a writer sensitive to the art of language, Will heaps generous praise on the "rhetoric" of Lincoln, describing the Gettysburg Address as "the greatest moment of American rhetoric" (p. 18). Yet, he is practically silent concerning the content of Lincolnian rhetoric, which consists of a continuous elaboration of the meaning of equality and its democratic consequences. Will tries to drive a wedge between Lincoln, who demanded universal consensus on certain fundamental questions in an "open society," and Jefferson with his principles of "self-evidence" (p. 50 ff.). Will writes as if Lincoln himself had not credited "all honor to Jefferson" whose principles "are the definitions and axioms of free society." But there is no difference between them. Jefferson's contention was that the "self-evident principles" of natural rights have scientific certainty; the terms once grasped cannot be denied by rational men; they are closed questions in the way a geometric proof is a closed question. Jefferson took great pains to inculcate those principles among his countrymen, in full agreement with Lincoln that free government is impossible without consensus on natural rights.
But nature has only a tenuous place in Will's thought. He would teach that government is "natural to man as clothes and shelter because it serves needs that are natural to man" (p. 160); those needs are preeminently psychic (p. 143). Statecraft should be guided by "human nature"; it should gently pull citizens in that direction as if guided by a compass (p. 42).
Ultimately, however, the only "human nature" which is relevant for Will is "second nature." Will's adherence to Burke and the consequent substitution of custom for nature create an insuperable and inescapable problem. On the one hand he attacks historicism-the doctrine of determination by history or tradition-and its political offspring, such as Hitler, for whom "[n]ature makes no difference, because man is only what happens to him" (p. 149). On the other hand, "[t]he variety of human capacities at any moment in any society is historically conditioned; therefore the range of suitable forms of political association also is conditioned" (p. 161; cf. pp. 82, 155). Since "second nature" is historically determined, it is impossible for Will consistently to point to any transcendent political standard in his critique of liberal democracy. Burke, as Leo Strauss has pointed out, stands at the fulcrum between the end of the modern natural-rights school of thought and the beginning of its replacement by historicism. By its inner "dialectical" necessity, historicism, despite its origins in the sober Burke, culminates in the doctrines of Marxist class-rule or Nietzschean elite-rule. The real origin and confusion of Will's "conservatism" come to sight in this paradox. It is entirely understandable why Will holds Hamiltonian commercialism to be the real basis of American society, and why he insists on defending "elitism" against attacks by "populists" (cf. pp. 90, 158-59). The effort to climb the historicist mountain by returning to the politics of Burke proves to be a Sisyphean enterprise.
Will writes page after insightful page on our contemporary political ills, all the while missing the controlling fact that the responsibility for those ills lies squarely with our political elites themselves, who oppose the "populist" demands of the American people.
All political societies tend to divide between people and what I follow Will in calling elites. The moral qualities he praises are, in fact, virtues which retain their hold on most Americans. For example, American wage earners, black and white alike, still struggle so their children can receive the best education and can perhaps even go to Harvard to hear George Will attack the evils of "populism." American parents continue to develop the character of their children as well as they can, unintimidated by the prevailing elite belief that character is a restraint on "freedom of expression." As far as the American people are concerned, it is the elites who are not responding to their "populist" demand to restore moral and political principles to the nation's educational and political institutions.
A viable American conservatism would begin with a defense of popular virtue on the basis of an understanding of natural rights. Such a conservatism is "populist"; it is the opposite of a politics of divisiveness. It does not pit group against group (compare post-New Deal Democratic Party "pluralism"); nor does it govern by opinion poll, which is a common caricature of populist politics. Populist conservatism contends that one of the decisive tasks of leadership in representative democracies is easing political, economic, and social pain by articulating solutions to the problems causing people to suffer that pain. Thus, it is not sufficient to describe leadership as "the ability, among other things, to inflict pain and get away with it" (p. 159). And the "clean-up crew conservatism" that Will would oblige us to follow precludes any possibility of directing social transformation.
The difference between Will's elitism and populist conservatism is most evident in the debate over economic policy. Will chastises conservatives, Ronald Reagan explicitly (pp. 122-23; p. 23 notes Reagan's "Manchester school" liberalism), for their belief that economics and politics are totally separate realms; doubtless, this is justifiable criticism of some on the right. But he simply ignores the President's (and many conservatives') conversion to the "supply-side" school of economic thought. Supply-side economists have drawn an inseparable connection between the economics of growth and the politics of democracy. Supply-side economics is to populist democracy as the concave is to the convex. Indeed, supply-side policy is the archstone of President Reagan's populist political revolution-and populism is George Will's archenemy.
Will's argument gives rise to several related problems. Few working-class Americans believe with Will that "the one thing we do not have is strong government" (p. 159). Fewer yet would accept his eccentric opinion that Americans are undertaxed. His solution, enhancing the authority of elites and restoring the deferential politics of Burke, would lead dialectically to a further compounding of the difficulties he wants to overcome. For example, he defends the welfare state on the ground that it fosters "neighborliness" and other such virtues (p. 135). But in a regime based on the idea of human rights-unlike Tory aristocracy with its noblesse oblige-the welfare state fragments the community even further than the ethic of self-reliance does (cf. p. 129).
The reader may well suspect that Will's conception (or misconception) of "virtue" is in tension with the egalitarian ground of liberal, representative democracy. Will's project in this book amounts to articulating another argument in support of the political and social agenda of the elites; it represents a threat to a viable, popular-based conservatism. We are relieved only by the fact that Will's elitist conservatism bans itself from any hope of success.
To be truly edifying, journalism must be more than elegant and literate. It must seek to refine the decency of the American people and not repeat the error of political pundits since the Progressive Era. It must do more than merely strive to achieve another circulation of the elites.
REPLY TO TETI
By David Green
In attempting to reconstitute political argument in contemporary America, George F. Will provokes vigorous counterarguments from reviewers like Dennis Teti. Teti praises Will's emphasis on the importance of virtue in politics and his defense of the grandeur of the political calling. But Teti condemns Will's "Toryism," his reliance on Burke, and his preference for rule by elites as opposed to conservative populism.
It is lamentable, to be sure, that Will likes to refer to himself as a Tory. The day when Americans of any stripe should seek that label should have passed with Bunker Hill, or at least with Thomas Jefferson's suggestion, in his reply to the 16th Query in the Notes on the State of Virginia, that a Tory has been "properly defined to be a traitor in thought but not in deed." Even so, it is unfair to imply that Will is an enemy of the American Revolution. At no time, that I know of, has he suggested that America was wrong to sever its connections with Great Britain; at no time has he questioned the truth or wisdom of the central doctrines of the Declaration of Independence. Indeed, he even refers to those doctrines as "great truths," regretting only that they are not easily self-evident (p. 55).
At the same time, however, it must be admitted that Will has on occasion expressed reservations about some emphases in the Declaration, reservations that are grounded on a highly imperfect understanding of the document's meaning. When Will derides the pursuit of happiness as a "sobering thought," he, like the hedonists he deplores, misconstrues the import of Jefferson's words. The pursuit of happiness is a sobering thought only to those who believe that Jefferson's idea of happiness was indistinguishable from that of say, Larry Flynt, or who believe that a Larry Flynt would be free to operate in a Republic presided over by Jefferson. Those who would make Jefferson into an intellectual father of the American Civil Liberties Union forget that the cultivation of civic virtue was a lifelong preoccupation of his, as almost any page taken at random from his voluminous writings would confirm. Having declared that men have inalienable rights, Jefferson labored ever afterward to educate his countrymen in the conditions of freedom, lest they otherwise lose what was justly theirs.
As for Will's contention that the Declaration, in its emphasis on rights, tends ultimately to produce a nation of individual men intent on declaring their independence from each other, let it be remembered that the Declaration is a pronouncedly political document. Its enumeration of rights implies a corresponding set of duties; the inalienable right to life, set forth at the beginning, is matched by a pledge of lives, fortunes, and sacred honor, at its conclusion. Had not the signers, and the men and women they represented, been willing to surmount their private concerns and unite in a common endeavor, the desire for independence would have been nothing but a vagrant hope. The
continued enjoyment of the liberties thus won is predicated upon a similar willingness to provide for the common good. An appeal to the better angels of men's nature, though never better expressed than by Lincoln, is not without its corollary in the Founding era.
Will quotes liberally from Burke, but it is unclear just how much of Burke's thought he agrees with. It is by no means certain that Will shares Burke's contempt for "theoretical" politics, for governments founded on abstract truths which, in Lincoln's
phrase, are applicable to all men at all times. Will fully accepts the distinction between the traditional and the good, and insists that, of course, the good must take precedence. Moreover, as a fervent opponent of totalitarian government, Will can have no objection to a revolution aimed at rectifying a "long train of abuses." He is wary only of revolutions aimed at laying waste to all institutions in a society, revolutions that recklessly disregard the settled convictions and predilections of a people. Such revolutions inevitably produce chaos, disorient citizens, and pave the way for more vicious tyrannies. In this respect, Will resembles the Founders themselves, who, having waged a revolution in defense of natural rights, thereupon took pains to create a system of government whose principal features were consistent not only with those rights but also with the prevailing habits, mores, interests-in short, the genius-of the American people. The Founders' labors in this regard are fully explicated in the Federalist papers, particularly numbers 1-14, and are examined retrospectively at great length by Tocqueville.
What is distressing about Will's reliance on Burke is his inference that Burke saw the need to cultivate civic virtue, whereas none of the American Founders did. To Will, Burke's thought is a "gloriously bright but isolated flaring of a vanishing tradition" (p. 28). The thought of the Founders, in contrast, Will sees as an almost undiluted version of the most ignoble strains of modern political thought. The United States, as a liberal democracy, was "founded with explicit and exclusive reference to individual self-interestedness" (p. 31, emphasis added). Whatever classical elements are present in the American Founding, Will attributes not to the intentions of the Founders but rather their confusion.
It is a mystery why Will insists on seeing the American Founding as a base endeavor, Federalists 10 and 51, which he quotes at length, are by no means the final word on the sort of polity the Founders wished to establish. Then, too, their prescriptions are defensible on prudential grounds, so long as one recognizes that the Founders regarded the various checks and balances as auxiliary precautions: As Federalist 51 itself acknowledges, a dependence on the people (i.e., their vigilance issuing from sound character) would remain the primary control on governmental excess.
Above all, the Founders hoped to devise a system in which the virtue and self-interest of citizens would reinforce one another. Not for a minute did they believe the country could perpetuate itself in the complete absence of virtue, nor were they so naive as to create a system which could endure only if a large majority of the citizens were exceedingly virtuous. By confounding public and private interests, the Founders hoped to create, as Jefferson suggested in his First Inaugural, "the strongest government on earth." Wrote Jefferson: "I believe it is the only one where every man, at the call of the laws, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern."
In asserting that Americans would come quickly to the defense of their country, Jefferson presumed the existence of statesmen who would both alert the public to the approaching danger and delineate measures to combat it. Without statesmen to marshall public support, the nation would be ill-equipped to respond, except feebly, to crises amenable to only the boldest actions. With the interests of the people uppermost in mind, Jefferson therefore strove to foster the development of what he called the "natural aristocracy," a leadership class drawn from the ablest, as opposed to the most privileged, members of society.
By calling for rule by "elites of character," George Will merely echoes Jefferson's call for the cultivation of a ruling class; thus, to regard his proposal as contrary to the American political tradition, or adverse to the interests of the people, is highly unfair. His Tory rhetoric notwithstanding, Will is no more an advocate of a "pseudo aristocracy" based on wealth and birth than was Jefferson. Will's ideal statesman-Lincoln-is hardly emblematic of the corruption of the ancien regime. Then, too, Will's elites, like Jefferson's, would be held to account by frequent elections. Were they to stray from a reasonable course, they would, of course, be susceptible to being driven from power. Will's steadfast opposition to the sort of elites Teti objects to surely proves that he is not indifferent to the nature and composition of prevailing elites. And given that some elite must rule, Will is hardly to be faulted for preferring rule by the ablest ones.
And let us be frank: some national problems simply will not be resolved by a conservative populism. It is inescapable that leaders must on occasion be prepared to "inflict pain and get away with it," as Will puts it. The United States is currently saddled with a deficit approaching $200 billion. Barring the outbreak of an altogether unprecedented level of economic growth, it can be substantially reduced only by raising taxes or cutting government spending. A statesman attempting to pursue either course will inevitably inflict pain upon, and hence anger, sizable portions of the population. The health of the nation's economy requires, however, that he take some action; his own political future in turn requires that he be able to get away with it.
It is imprudent and, hence, unconservative to favor conservative populism over rule by elites (even if it were possible to eliminate elites). The people, though often right, have occasionally been dangerously shortsighted. It is well to remember, as Will has elsewhere noted, that the American people were slow to confront the menace of Hitler, and no sooner than they successfully had done so, they called for the immediate demobilization of America's armed forces, thus encouraging communist belligerence in the early days of the Cold War. To avert similar results in the future, American statesmen, unlike the ancient Roman tribunes, must do more than merely give vent to popular displeasure and frustration. Conservatives who insist that the people undirected are entirely reliable and that leaders need never trouble themselves asking their constituents to make sacrifices are hardly worthy of the name, and forget that the greatest statesman of the twentieth century entered office, admittedly during wartime, offering not untroubled bliss but, in the short run at least, "blood, toil, tears, and sweat."
WHERE ARE WE?
Coolidge and the Historians
Thomas B. Silver
Durham: Carolina Academic Press, 1983
xv + 159 pp., $14.95
By Glen E. Thurow
"If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it." These opening words of Lincoln's "House Divided" speech might be taken as a wise admonition for Americans at all times. But what does it mean to know where we are? In the 1858 speech, Lincoln went on to argue that it meant to know that the various policies being followed by the government rested upon a design to make slavery secure by perverting those principles of self-government which stood in opposition to it. The designers intended that Americans would be convinced that the sacred right of self-government means "that if any one man choose to enslave another, no third man shall be allowed to object." To know where we are is to see whether our policies are strengthening or perverting the principles of self-government.
For the past decade and more our politics has been characterized by hesitancy and confusion over "where we are, and whither we are tending." By all accounts, contemporary American politics was decisively formed by the coming of the New Deal. Political scientists have identified the 1932 election as the most recent of the few "critical elections" in American history-an election which brought about a significant shift in our understanding of the role of government, inaugurated the dominance of the Democratic party, and determined the shape of electoral conflict for decades to come. Both political parties have looked back to the New Deal and have taken it to be their tasks to either endorse, qualify, or oppose its tendencies.
Yet in the last decade or so the political forces unleashed and disciplined by the New Deal have reached their end, or at least fallen upon hard times. The Democrats last nominated an unqualified New Dealer for President in 1968, and that led to rifts within the party and a Republican victory. Confidence that such New Deal prescriptions as Keynesian economics and the welfare state are satisfactory remedies for our current domestic illnesses is almost nonexistent in either Democratic or Republican Parties. Yet, despite efforts within both parties, it cannot be said that some new view has come to dominate our politics. The voters rejected the alternative implicit in the candidacy of George McGovern in 1972, and, although they chose Ronald Reagan in 1980, they seemed to draw back in 1982. The voters' hesitations only mirrored those within the Republican Party itself. Nothing is more characteristic of the contemporary Republican Party in power than lack of confidence in its own ability to govern. This not only betrays a party unused to governing, as often noted, but more importantly a party unsure of the lightness of its principles and hesitant to condemn those of its opponent. Perhaps it is time for both parties to look to their deeper roots.
While both political parties until recently have taken their cues from the New Deal, the older roots of the parties are usually neglected. Both parties tend to view their pre-New Deal history only through the lenses provided by the 1930s. The Democrats may honor Jackson or Wilson, but as precursors of the New Deal. Despite the fact that the Republicans have been the more "conservative" party, they are more cut off from their roots than the Democrats. While the New Deal has its "precursors," the opposition or accommodation to the New Deal has no "precursors" (not Hamilton, not Jefferson, not Lincoln, and certainly not Harding, Coolidge, or Hoover). The possible pre-New Deal heroes of the Republican Party have been either discredited by the New Deal or appropriated by it. Present-day Republicans more often turn to Edmund Burke than to any pre-New Deal American statesman.
In our circumstances, to know where we are requires that we better understand the choice made in 1932 and the path it has laid out for us. Only then may we be able to set aside its lenses for more adequate ones.
We turn naturally to the historians of the 1920s and '30s to help us understand the change which then took place. Thomas Silver's book shows, however, that the leading historians of the period can give us little help. They are part of the problem, not its solution. Focusing on the predominant historical accounts of Calvin Coolidge and his presidency, Silver shows that partisanship for the New Deal has prevailed over objective scholarship. In the service of this partisanship, historians have relied on biased witnesses, misquoted statements, yanked words out of context, caricatured complex positions, reported only one side of controversies, and misused evidence. Indeed, there is scarcely one sin of the historian's craft that is not characteristic of the predominant scholarship of Coolidge and the 1920s.
Silver's critique is devastating, and nowhere more so than in his critique of Arthur Schlesinger, Jr.'s portrayal of Coolidge in his Pulitzer Prize-winning Crisis of the Old Order. There is not one sentence in Schlesinger's account which can be left standing without qualification after Silver's assault. Schlesinger's story is revealed to be a pure invention of the historical imagination. If this judgment of an acclaimed and talented historian seems harsh, let me illustrate Silver's thorough devastation with an example.
In describing Coolidge's social philosophy, Schlesinger argues that Coolidge believed that the only justification of the federal government was to serve business. To substantiate this argument, Schlesinger relies upon a single quotation from Coolidge: "The law that builds up the people is the law that builds up industry." Although Schlesinger does not identify the source of this cryptic quotation, Silver has tracked it down to a speech delivered in 1916. There is nothing in the speech about the federal government serving business. The "law" in the quotation refers not to the laws of government as Schlesinger's use of the quotation implies, but to economic and social law. Coolidge is making the unexceptional point that the prosperity of people and industry are bound up together. The only reference in the speech to the federal government is a defense of the antitrust laws made after Coolidge deplores the fact that prosperity led men "to think that prosperity was the chief end of man and grew arrogant in the use of its power." Said Coolidge of the antitrust laws:
They are sound in theory. The assemblages of wealth are broken up because they were assembled for an unlawful purpose. It is the purpose that is condemned. You men who represent our industries can see that there is the same right to dispense unlawful assembling of wealth or power that there is to disperse a mob that has met to lynch or riot.
Silver justly concludes:
Professor Schlesinger . . . has dug up an obscure sentence from Coolidge, has refused to tell his readers where he got it, has used it to prove something that it does not prove either by itself or in its original context, and has ignored an explicit assertion by Coolidge, not that the federal government exists only to serve business, but that the government exists in part to regulate, to check, and to discipline business. (p. 24)
Were this an isolated example, one might say that the great man nodded. But Silver shows that this example is typical of Schlesinger's scholarship on Coolidge. Contrary to Schlesinger, Silver shows that Coolidge did not detest government, did not believe its chief task was to serve business, and did not believe that government should always strive to make itself as small as possible.
Most historians view the 1920s as a time of triumph for unrestrained capitalism. The presidency itself, the story goes, became the captive and spokesman for big business, to the detriment of agriculture, small business, labor, and every other sector of American life. The cooperation of business and government power resulted in an unbridled pursuit of wealth which eventually proved capitalism's undoing. In failing to foster the economic well-being of the mass of Americans, governmental policy neglected the need for greater consumption as production increased, leading to the collapse of the Great Depression. This failure was not only one of economic policy, it was also a failure of character and idealism. The period was mirrored in the character of its chief spokesmen, such as Coolidge, in whom the restraints of an older virtue or the compassion of Wilsonian idealism had collapsed before the unrestrained passion for wealth. The old order got what it deserved at the hands of Franklin Roosevelt.
This recounting, Silver shows clearly in the case of Coolidge, cannot stand. Silver focuses on three major episodes of Coolidge's career, comparing the account of historians with the original sources. The first is Coolidge's handling of the Boston police strike of 1919. This episode catapulted him to the vice presidency and, upon the death of Harding, to the presidency. Although Coolidge's conduct was much lauded at the time, later historians have generally argued that Coolidge had not displayed the courage, foresight, and principled action his original supporters thought, but that by a stroke of luck he had received credit due to others or to fortunate circumstances. Silver walks through the days of the police strike and shows that Coolidge's actions might be taken as the very model for statesmen who find themselves in such crisis circumstances. He shows us a Coolidge who clearly understood the principles at stake in the struggle and who never deviated from these principles in spite of the fact that he himself thought his course might prove his political undoing. Yet he also acted with consummate prudence, not only in resolving the immediate threatening situation in Boston, but by crystalizing for the nation as a whole the issues involved in a complex and confusing situation. Silver shows that it is largely because the historians have not appreciated this latter task that they fail to see the true skill and courage reflected in Coolidge's actions. In many respects Silver's account of the police strike is the best part of his book, for it reveals not only the errors of others but a subtle and attentive appreciation of the statesman's task and the circumstances with which he must deal.
The other two episodes examined by Silver are critical for the charge that Coolidge was but the representative of business interests: the fight over the McNary-Haugen farm relief legislation and the Mellon-Coolidge tax cuts. The first is used by many historians to show that although Coolidge was willing to use the power of government to protect business, he was not willing to do the same for agriculture and was indifferent to the plight of the farmers. Although Silver does not believe that all of Coolidge's economic policies were sound, Silver does show that Coolidge was willing to give the same kinds of aid to both business and agriculture. He opposed McNary-Haugen not out of a doctrinaire belief in laissez-faire economics, but because it was economically unsound (as the same historians concede) and because the legislation granted a kind of aid Coolidge thought dangerous to American economic and political principles (as the historians tacitly concede by being unwilling to apply its principles to business).
The Mellon-Coolidge tax cuts were much like the across-the-board cuts under Kennedy in the early 1960s or Reagan in the 1980s, with the difference that they were cuts of emergency wartime rates. Historians have attacked them on the grounds that they benefited the few rich at the expense of the rest of the population and that they contributed to the speculation and maldistribution of wealth which caused the Great Depression. Silver defends the cuts by showing that aid to the rich was neither the intention nor the effect of the tax cuts. The vast bulk of the cuts, in fact, went to middle and lower-income groups. One of the intentions in making the cuts across the board was to raise more money from the wealthy by making tax shelters less attractive and business activity more so, and that was exactly their effect. Silver also shows that the gap between rich and poor did not widen during the 1920s, and that the view that the depression was caused by underconsumption and too much speculation and investment is untenable.
Coolidge and the Historians is not itself a book which provides the reexamination of the change of 1932 we need, but it does clear the path for such a book. In clearing the ground of the predominant misconceptions-in showing that they are, indeed, misconceptions-Silver opens anew the questions about the period that need to be raised if a more adequate account of the New Deal revolution is to be given. Silver does not clear Coolidge of all the criticisms which might be lodged against him; rather, he shows that the issues between Coolidge and Roosevelt-and especially the relationship between economic institutions and policy and free government-are not fully understood and are yet to be satisfactorily resolved. He shows that the struggle culminating in 1932 was not a B-grade Western action between good and bad guys but a profound conflict, whose understanding might help both Democrats and Republicans to find more secure roots, for Coolidge is not the dead end of selfish acquisition, but a statesman who points us back to Lincoln and the Declaration of Independence, of whose principles he once said that "No advance, no progress can be beyond these propositions."
How Courts Govern America
New Haven: Yale University Press, 1981
233 pp., $15.00 (cloth), $7.95 (paper)
The Constitution, the Courts, and Human Rights
Michael J. Perry
New Haven: Yale University Press, 1982
241 pp., $24.00
By Jonathan K. Van Patten
In the late 1950s and early 1960s, it was fashionable to talk about a "deadlock of democracy." There was a need, it was said, for a strong President to cut through the political stalemate and initiate policies responsive to the wishes of the people. Decisive action by the President would transcend the limitations of faction in the principal democratic institution and achieve a democratic end, albeit not strictly through democratic means. Proponents of a strong Presidency have been somewhat muted by the performance of recent administrations. And disillusionment with the Presidency has been accompanied by disillusionment with the political process generally.
One response has been to seek an increased role for the judiciary in the governance of American society. For the most part, the courts, both state and federal, have responded enthusiastically. Thus, we have witnessed courts taking administrative control of school districts, of prison systems and mental health institutions, courts directing legislatures to redraft political boundaries for voting rights purposes and to reform the financing of public education, courts enjoining public projects in response to environmental concerns, courts ordering the hiring and firing of public employees in order to meet affirmative action goals and, in a recent instance, a court ordering the payment of state funds when the governor and legislature became locked in a political standoff. In the protection of individual rights against governmental infringement, the courts have recognized the woman's right to obtain an abortion, have reinstated public and private employees who claimed due process violations or employment discrimination, and have struck down restrictions on free speech, including pornography, except when the restriction involved what is termed "commercial speech."
The scholarly defense of this judicial activism has been slower in developing than the activism itself. This is due, in part, to the "crisis" in the late 1960s with the election of Richard Nixon and the retirement of Earl Warren. There were fears that the judiciary would become activist in the pursuit of conservative causes. Nixon's early appointments did nothing to dispel this fear. However, as it became apparent that the Burger Court was not going to engage in a wholesale repudiation of the Warren Court decisions, a principled defense of judicial activism began to emerge. With Laurence Tribe's American Constitutional Law (1978), Jesse Choper's Judicial Review and the National Political Process (1980), and John Hart Ely's Democracy and Distrust (1980), a scholarly defense of judicial activism in the post-Warren era, with certain limitations, was established. These books have paved the way for a more aggressive justification of judicial activism.
Richard Neely's How Courts Govern America gives a candid view of how and why the courts have assumed such an active role in governing. Judge Neely is the Chief Justice of the West Virginia Supreme Court of Appeals and is a former member of his state's legislature. His book is an extended argument from circumstance: the judiciary should take the initiative on many political issues because the executive and legislative branches are unable or unwilling to resolve them. Neely compares the judges to Zeus of the Prometheus legend: "They are young, immature gods with limitless and inadequately understood power" (p. 11).
In order to establish a more adequate understanding of this "limitless" power, Neely engages in the ritual debunking of the past which has become de rigueur among modern constitutional commentators:
Students of constitutional law are usually confounded by certain obvious historical absurdities in the legal opinions of judges, because it is unreasonable to say with a straight face that the founders of this nation-many of whom owned slaves-really intended the words in the Fifth Amendment to the Constitution to include blacks or that the drafters of the fourteenth Amendment-almost none of whom would have had a negro as a social guest-actually intended the words "due process" and "equal protection of the laws" to mandate complete economic and social equality for all races. . . . Lawyers, certainly, who take seriously recent U.S. Supreme Court historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny. The truth of the matter is that judges do not say these things with a straight face: they are talking in code which most of the bar understands. (pp. 17-18)
The use of precedent and reasoning from established legal principles does not fare any better under Neely's view:
Since every conceivable issue known to government can be phrased in constitutional terms, and since a craftsmanlike judge can write in proper legal form an opinion justifying almost any result which he wishes to achieve, what the Founding Fathers intended in 1789 when the Constitution was ratified is not what constitutional law is now about. Constitutional law is neither about a "constitution," nor about "law"; rather, constitutional law is about institutions and the way they interact with other institutions. (p. 10)
Neely's candor about the current state of constitutional law is astonishing. There are no legal restraints on the judges, only institutional and political restraints. Legal analysis is a myth. Judges come to exercise more power when they understand the essentially manipulative character of all legal reasoning. It allows them to accomplish more directly what heretofore had been, at best, accomplished indirectly through intuition and deception. This turns Alexander Hamilton's original defense of judicial review in The Federalist on its head. The judiciary no longer exercises judgment (in the traditional sense) but merely imposes its will. It is restrained only by force, in the form of pressure from other institutions.
The increased power of judges does not, in Neely's view, derive solely from the decline of the rule of law, traditionally understood. Judicial power has also been expanded by default, in response to the institutional failings of the elective process, the legislative branch, the executive branch, and political organizations (p. 21). Elective office now requires a substantial amount of money for a successful campaign (p. 31). This protects incumbents as well as increases the influence of special-interest groups with money to support the reelection of sympathetic officeholders (pp. 34-35). The restriction of citizen access to the political process has expanded, in Neely's opinion, the opportunities for judicial activism. "The reason that people go to court rather than to the political process to get the law changed is that the courts are cheaper" (p. 30). The courts are able to act on "general-interest" matters while the legislature is bogged down by special-interest legislation (pp. 50, 77). This occurs not by inadvertence but by design: "a legislature is designed to do nothing" (p. 55). When the legislature does act, the merits of a particular issue are often obscured by the political horse-trading (pp. 63-66). There are legislative sins of omission as well as commission. Thus the courts will take up matters not addressed by the legislatures, such as reform of the criminal law process (pp. 145-69) or reform of the juvenile system (pp. 15-16). The courts also stand ready to review administrative actions in order to ensure an accountability which the executive branch is unable to impose upon itself (pp. 109-10). According to Neely, this activism works because, on the whole, the judiciary is the most selfless and impartial of the governmental institutions (pp. 192-96).
Neely's fictional account of judicial activism is not dependent upon the knowledge or ability of individual judges. In his view, judges see a problem and resolve it about as well as competent mechanics or plumbers resolve the problems presented to them (p. 215). If the judge is inclined to follow precedent, "[t]he system yields good results because in this respect it is set up like an army: an organization designed by geniuses which can, when necessary, be executed by idiots" (p. 215). And what happens when the individual judge chooses to not follow precedent but personal preference or ideology? The problem-solving inclinations of the American judiciary will succeed only so long as there is an understood tradition of intellectual discipline, integrity, and impartiality. Neely's debunking of the analytical roots of legal reasoning serves further to erode the conditions for the rule of law. Judicial activism, unrestrained by precedent or principle will engender countervailing political pressures and thus endanger the independence and integrity of the judiciary.
The problem of providing a principled justification for judicial activism is the subject of Michael Perry's The Constitution, the Courts, and Human Rights. Perry, like Neely, feels that the past as embodied in the text of the Constitution is an insufficient guide to the resolution of constitutional law issues. "The Constitution consists of a complex of value judgments the Framers wrote into the text of the Constitution and thereby constitutionalized" (p. [unintelligible in original]). The "value judgments" label, of course, is a ground leveler and helps relegate the Framers to their own distant time and place. That they constitutionalized their value judgments and that we should not be reluctant to read the Constitution in light of our own values is the implicit message. Perry, however, does not advocate the rejection of clearly defined constitutional precepts. Rather, he urges that such clauses as the equal protection, due process, and free speech clauses not be limited to the specific understanding of the Framers (pp. ix, 69-75).
Perry attempts to articulate a functional justification of nontextually based constitutional interpretation. He calls this approach "noninterpretivism," by which he means "the determination of constitutionality by reference to a value judgment other than one constitutionalized by the Framers" (p. 11). Upon what basis should "extra-constitutional" values influence constitutional analysis? Ultimately, Perry believes, the people ought to decide which values will shape the meaning of equality, fair play, and liberty. In this, he sides with many modern constitutional commentators, including John Ely, who view democracy as a mere process, with little or no substantive content. Quoting political theorist Brian Barry, Perry "reject[s] the notion that one should build into 'democracy' any constraints on the outcome produced, such as substantive equality, respect for human rights, concern for the general welfare, personal liberty or the rule of law" (p. 3). Stephen A. Douglas's popular sovereignty doctrine appears to be alive and well in academe. Douglas did not care whether slavery was voted up or voted down. He believed the most important condition was that the majority in each jurisdiction should decide. Thus, in Douglas's view, democracy was perfectly compatible with the institution of slavery. Perry echoes Douglas's doctrine when he says democracy does not require respect for equality of persons, for human rights, or for the rule of law. The denial of substantive content to the concept of democracy brings to mind Grant Gilmore's provocative observation: "The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed."
Although the citizenry will ultimately impose its "values" on the issues concerning liberty, equality, and fairness, the judiciary will play an active role in the "constitutional dialogue" (p. 113). Perry does not believe, however, that every constitutional issue should be an open question for the judiciary to resolve. With respect to certain issues of federalism and separation of powers, he argues that noninterpretive review cannot be justified (p. 60). In contrast with his approval of noninterpretive review in cases concerning human rights, Perry condemns judicial activism, for example, in the area of congressional regulation of interstate commerce (pp. 46-49). Perry's concept of human rights would appear, then, not to include the right to engage in a lawful business or the right to be free from arbitrary or unduly burdensome regulation. In short, Perry's definition of human rights would appear not to include property rights. It is at this point that "human rights" begin to look suspiciously like Perry's own preferences. As a rule, academics like freedom of expression and association, privacy and personal autonomy, equality, and the right not to be stereotyped into traditional roles. Property rights, on the other hand, are tacky.
Perry builds his case for noninterpretive review in part on the limitations of interpretive review. Interpretive review, with "reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution" (p. 10), cannot justify many of the modern Supreme Court decisions in the areas of free speech and equal protection (pp. 64, 67-68). Relying on the historical studies of Leonard Levy and Raoul Berger, Perry argues that the intentions of the Framers were very narrow and sometimes even antithetical to modern views of liberty and equality (pp. 61-71). Lest we ever forget, "the Framers established a government whose principal constituency were propertied white males, many of whom were slaveholders" (p. 197, n. 46). The Founding, however, is not as corrupt or hypocritical as Perry seems to suggest. The Founders believed that government could be grounded on something more than narrow self-interest. By Act of Congress, they declared independence from Great Britain and formed a government grounded upon certain self-evident truths. The first of these truths was the principle of equality by which it is said that no one can govern another without obtaining consent. This principle eventually broke the back of slavery. It is probably more accurate to say that interpretive review has lost its attraction primarily because judges and scholars no longer apprehend how the principles of the Declaration of Independence shaped the Framers' understanding of the Constitution and the Bill of Rights.
Noninterpretive review, Perry believes, is more conducive to the modern recognition and evolution of human rights (pp. 100-2). Through this kind of review, the judiciary initiates a moral dialogue with other branches of government. The judicial branch is the least beholden to "established moral conventions" and "closed" morality (pp. 100-1, 111). It is "an institution that resolves moral problems not simply by looking backward to the sediment of old moralities, but ahead to emergent principles in terms of which fragments of a new moral order can be forged" (p. 111). How will the judges usher in this new moral order? Where will they find the new values? Perry believes the individual justices "will deal with human rights problems in terms of the particular political-moral criteria that are, in that justice's view, authoritative" (p. 111). It is now clear that Perry had to argue in favor of a value-free democracy in order to justify his view that judges should look to their own values. If democracy requires certain substantive rights, then Perry's whole enterprise fails because judges should attempt to articulate these rights rather than impose their preferences upon the democratic system.
By consulting what the individual justice believes to be authoritative, Perry believes that the judges collectively will act as a catalyst in the nation's moral evolution. "The moral sensibilities of the pluralistic American polity typically lag behind, and are more fragmented than, the developing insights of moral philosophy and theology" (p. 118). Non-interpretive review will require the appointment of a certain type of judge: "thoughtful, deliberate individuals not wedded to a closed morality, but committed to the notion of moral evolution and . . . themselves open to the possibility of moral growth" (p. 143). Perry acknowledges the danger of "moral retardation" (p. 115) but believes this risk is not too great in light of the greater sensitivity to moral issues today (pp. 116-18). Presumably, these judges will come from the right schools. The judge's power to interpret the Constitution has apparently developed into a power to fantasize about the Constitution or, more accurately, about society, and to see such fantasies realized, if only in part.
Although Perry encourages the judiciary to be aggressive in this moral dialogue, he recognizes some restraining factors. The appointments process will serve to prevent the naming of individuals who are too "idiosyncratic or exotic in their own moral values" (p. 143). Those who are named will be representative of the "larger pluralistic, moral culture" (p. 116). As a political check on the activism of the Supreme Court, Congress may exercise its power under the Exceptions Clause to limit the appellate jurisdiction of the Supreme Court (p. 132-35). These mechanisms help to retain a measure of accountability in judicial decisions. Perry sees the judges as ultimately subject to popular opinion, but we should note that popular opinion will be shaped by the moral dialogue engendered by the judiciary, much as Socrates tutored the slave boy in the Meno.
From both Neely's and Perry's books, we see the argument for an aggressive exercise of power by the judiciary in order to deal with the important questions of liberty, equality, and fair play. Whether because of the institutional defects of other branches or because of its own greater openness to "moral growth," the judiciary is viewed as the moving force in our democratic system. The judiciary will save democracy from its own defects and its resistance to moral evolution. Both books appear to cut off the judicial decision from its basis in fundamental political principles and tie it instead to dubious personal moral and political preferences. The prestige and independence of the judiciary remains dependent upon its continued image of impartiality and fairness in its application of the rule of law. The judges, who are sworn to uphold the Constitution, can do great damage to public confidence in the judiciary if they attempt to usurp power and govern the political institutions. It would be ironic, to say the least, if those charged with the defense of constitutional government became its chief enemies.
Back to Basics
Burton Yale Pines
New York: William Murrow, Inc., 1982
348 pp., $13.50 (cloth), $6.95 (paper)
By Richard L. Williams
Back to Basics is the result of a research project carried out under the auspices of the American Enterprise Institute (AEI). Its author is a resident journalist with AEI and a vice president of the Heritage Foundation, affiliations which place him at the institutional center of modern conservatism. In addition, Burton Yale Pines acknowledges considerable editorial advice and criticism from the personnel and fellows of AEI, all of which suggests that the argument of the book is broadly representative of conservatism. What, then, are the "basics" to which conservatives are trying to return?
Pines' intention is twofold. First, he means to describe the struggles of what he calls traditionalist America with the nation's ruling liberal establishment and orthodoxy. In the second place, he wants to set forth the sentiments and views central to traditionalist America.
Pines has done a commendable job of capturing the spirit of traditionalist America, a spirit compounded of bewilderment, frustration, indignation, and moral outrage. The traditionalists are angry at what they regard as not merely the folly but the injustice of liberalism. To them, the political world seems turned "upside down on its head" across the whole spectrum of American life.
The book covers the many fronts of the traditionalist war with the liberal establishment: the conflict between parents' groups and the public education system, the battles against the various manifestations of feminism, arguments over crime control and the appropriate principles of punishment, and the struggles in academia between liberalism and its conservative critics. The book closes with a look into the future: an analysis of the recent formation of organizational centers of conservatism such as the Heritage Foundation and a description of the crystallization of the initially scattered and isolated sentiments and views of traditionalist America into a more or less coherent body of thought.
As thorough as Pines's portrait is, as faithful as he is to both the substance and the spirit of his subject, his argument is nevertheless vitiated by his inability to comprehend the full dimension of the events he is reporting. To put the matter another way, Back to Basics does not itself get back to basics, to first principles. Because the book is representative of the conservative movement and because of the importance of that movement for contemporary politics, we must ask whether the failure is characteristic of the conservative movement as a whole.
Chapter X, "Arsenal of Ideas," is devoted to the conservative criticisms of liberal policies. Pines describes the core of this activity: "The think tanks and conservatives together provide traditionalists with their mightiest intellectual arsenal in memory. They produce the data base and the rhetoric to confront and disarm liberalism's reigning conventional wisdom" (p. 271). Their studies "construct a base of solid, respectable research, packed with hard evidence and data that cannot be easily dismissed or refuted" (p. 250). These have had an impact in that they have brought doubt about the wisdom of liberal policy into the realm of respectable public discourse. But the studies Pines cites largely, if not entirely, leave the premises of policy unexamined. That is, they are silent about the all-important principles of right or justice upon which the whole of public policy ultimately rests. Also, the spirit of such item-by-item studies is such that each one tends to be done in vacua, or without reference to the fact that all such policy items form links in a chain of public policy that is forged from a single source in some principle of right.
Conservatism defends the institutions it takes to be "first principles": the family, the church, a free-market economy, decentralized government, and a strictly limited bureaucracy (pp. 245-59, 267-72, 327-29), but it is highly doubtful that such institutions are "first principles" or that to return to them in an invigorated form is to go back to basics. Pines never speaks of the Declaration of Independence, of the Constitution, or of the thought of the architects of what is truly basic in the American political way of life. His thought seems to be estranged from its deepest roots.
As Pines's one reference to Jefferson illustrates, it is almost axiomatic with conservatives to reject the author of the Declaration of Independence as "among the most venerated of liberalism's ancients." The silent rejection of the political thought of the American Founding leads to two regrettable consequences. In the first place, it allows liberalism to appropriate the thought of the Founders for its own purposes, with conservatism silently permitting the left to steal the regime's moral-political high ground. Second, it allows itself to be cut off from those discussions of first principles that are contained in the writings of the Founders. Back to Basics fails in its task of leadership-that of showing its reader the way back to what is truly basic.