HOW DEMOCRACIES SURVIVE
By Jean-Marie Benoist
Marxism-Leninism is an ideological corpus of doctrine whose appeal should not be underestimated. Despite proclamations of the intellectual "death of Marx and Marxism,"* it still supplies the energy of a worldwide crusade and the strategy for a war against the Free World waged under the banner of "class struggle" and the implacable hatred of capitalism. Useful distinctions can be made between the teachings of Marx and Lenin, and between the teachings of both men and the actual practice of Communism today. These differences, however, are not contradictory but complementary. The Communist strategy of expansion is rooted in the theses of Karl Marx as amplified and put into practice by Lenin. The West is awakening slowly to the Communist military threat. But this threat, if it is to be contained, and reversed, must be understood as part of a global strategy rooted in Marxist-Leninist ideology.
Lenin, unlike Marx, envisioned the triumph of Communism not only in industrialized nations, but in underdeveloped countries as well. This Leninist extension of "class struggle" produced the global war in which we are now engaged. This war is total in its scope ("It is not victory that they want, it is the world" [Richard M. Nixon]) and total also in the use of all possible means: military force, military intimidation, indirect war of resources, terrorism, disinformation, demoralization, corruption of the elites, destruction of the cultural and legal assets of the Free World. The concept of totalitarianism has to be appreciated in this view. And it is a Marxist as well as Leninist concept. Lenin's theory of total war merely extends the scope of concepts which are genuinely Marxist, the concepts of contradiction and class struggle. From these seminal ideas arises the whole concept of war against the Free World and the will to impose the totalitarian model on all people.
The Marxist apparatus promised a gradual extinction of state power after revolution; but first, the proletariat, a liberating factor as well as a liberated "class," had to establish its dictatorship. This was conceived by Marx abstractly as a transitional phase.
Lenin transformed this nebulous abstraction into very specific practice. The international party that he conceived would be an elite, "the agents of awareness," Bolsheviks who would be only hard-core revolutionaries, entirely devoted to Communism, trained for struggle and absolutely disciplined, able to combine ruse and strength to conquer power. The dictatorship of the proletariat-using mass terror, state terror, imprisonment, and torture-became the way in which a determined minority could impose its will in order to establish a totalitarian regime on a country.
Stalin perfected the Communist technique for the conquest of power and for the establishment of a leftist totalitarian regime. But one has to realize that all the terror that is reproached in Stalinism was already enacted by Lenin. Lenin is the real inventor of the Gulag. In a telegram to Evguenia Bodganova Bosch, head of the Penza local section of the Cheka, in August 1918, Lenin wrote:
I have received your telegram. It is indispensable to organize a guard composed of the surest persons, carefully picked out. Apply a merciless terror against kulaks, priests and white guards; send the suspects into a concentration camp (koncentracionny lager) outside the city. Launch the expedition. Please cable implementation of orders.
Such murderous fanaticism, inaugurated by Lenin and perfected by Stalin, was made possible by Marx. It is the Marxist ideas of class struggle, of being on the side of history, that enable the perpetrators of these evil actions to commit their atrocities with a clear conscience. The Soviet strategy of terror, the will to power of the Bolsheviks, is already contained in the matrix of Marxism considered as a science and as a discourse of truth.
The promethean dream shared by Marx and Lenin is the dream of the creation of a new man, springing from the rubble of the "ancient man." This is the motto of the Third International, the one which is linked with the 1917 revolution: To generate a new world with a new human nature.
In order to change the world, globally and radically, one has to change the perceptions of the whole of mankind. This is the work of "disinformation," a Leninist "active measure" foreshadowed by the Marxist concept of dialectics and contradiction, in which truth is made relative and language is uprooted from meaning.
Everyone is now familiar with the routine disinformation that spreads lies and confusion about day-to-day events. But Marxism-Leninism also aims for disorientation at a deeper level. First, it attacks traditional cultures and symbolic codes. Sacred customs and values are relentlessly subjected to dialectical analysis. The entire histories of peoples and nations are reinterpreted in light of the tyrannical Marxist logic of "contradiction." This attack is waged against the Third World, in particular. The second target of the universal Marxist campaign of distortion is the "formal liberties" or "bourgeois liberties" of the Western democracies. Looked at through the dialectical prism, these liberties become the means used by the ruling and dominant class to reinforce its dominance and to exploit the "alienated classes." The state of right, the constitutional rules, the ethical and juridical forms of respect for democracy and for the human person are described by Marxism-Leninism as sheer instruments of domination, and their fundamental value is denied. The class conflict is always understood as underlying the surface structures of political or civil society. Bourgeois state and bourgeois law are equally condemned as archaic and obsolete before the reality of history. Similarly, the concept of legal and constitutional respect for the person is described by both Marx and Lenin as a petty bourgeois attitude rooted in selfish individualism.
The attack upon the state of right, upon the universality of human rights and the local preservation of our freedoms through law, is vigorously waged by the local Communist parties in Western democracies. These parties are within the system, apparently abiding by parliamentarian rules. But, in fact, they are undermining democracy from the inside. The so-called Eurocommunism in Italy and Spain, though supposedly less obedient to Moscow, is merely a tactical variation of the larger Communist design: advance the cause of revolution through all means, including legal means, as infiltrations within the apparatus of the bourgeois state.
Nicaragua today gives us a measure of the contempt that a Marxist-Leninist state can show toward civil and formal liberties. The Sandinistas have from time to time made some flimsy pretense of abiding by a rule of law. But this has always been done for the sole purpose of consolidating their own arbitrary revolutionary power, of which they have repeatedly shown the cruel reality.
The Communist design for world conquest, then, is founded upon Marxist philosophy and ideology. It is in the substratum of Marxist ideology that Communist expansionism is validated and rooted. As Andropov himself reaffirmed in one of his famous speeches to the Supreme Soviet, ideology is the privileged ground on which the definitive fight between Communism and capitalism takes place.
The full threat of Communist conquest and subversion, however, can be appreciated only when we combine Marxist ideology with Leninist strategy. This strategy encompasses not only the military, but the political, economic, cultural, and moral realms: Propaganda campaigns against the SDI, against the deployment of Cruise and Pershing missiles in Europe, and against the independence of French and British strategic forces are coupled with the cultivation of German guilt and manipulation of the German desire for reunification. Campaigns raising charges of racism in France follow terrorist threats aimed at affecting elections in Belgium, and serve the same disinformation purpose.
Bloody acts of terrorism on every continent sow fear and frustration, while constant appeals to the "Vietnam syndrome" rekindle self-doubt and moral confusion-all aimed at fostering a deep-seated isolationism in America. The campaign against South Africa is a perfect example of attacking in the moral realm to achieve military, economic, and political objectives. The Soviet pipeline to Europe is constructed as Western access to vital raw materials is threatened. The object of this strategy is to deprive the Western democracies of the means and the will to resist. For Lenin, as for the ancient Chinese strategist Sun Tzu, the supreme art of war is to defeat one's enemy without bloodying one's sword. This indirect strategy is combined today with classic forms of Soviet strategy, such as the Grechko doctrine of expanding into neighboring countries and the Gorshkov doctrine of remote operations through naval supremacy and use of proxies such as the Cubans, Libyans, North Koreans, and now the Sandinistas.
To this global strategy, we should oppose our own global strategy, not founded on a "mirror image" or a "symmetry," but upon the asymmetry which makes the Free World fundamentally different from the totalitarian world. The democracies must no longer naively project their own frames of mind onto their adversary, cooing about the liberalism of Andropov or the pleasant manners of Gorbachev. Such self-deception is a form of surrender.
The first rule for survival is to inform ourselves, to inform our youth, and to inform the countries of the Third World who want to resist Leninist takeover, of the ideology, strategy, and tactics of the adversary. If we fail to do this, we will simply produce another generation of "experts," diplomats, and politicians who will look upon Daniel Ortega, for example, as a decent social democrat instead of as the Leninist he is.
The antidote to disinformation is information: Information through education at school, but also through accuracy in the media. Radio Marti, Radio Free Europe, and Radio Liberty are means of fighting against disinformation abroad in the countries subjected to Communist rule. But we must fight disinformation at home as well. Our citizens must understand why constitutionalism and democracy are worth preserving and how they are threatened by Communist aggression.
The democracies must remain an example and a hope for those nations who look to us not only for military and economic aid but for moral and cultural guidance. This, of course, means that we must not shrink from proclaiming and articulating the superiority of democracy in principle to other forms of government. In staking out this high ground, however, our democratic principles themselves demand of us-what sound policy also requires-namely, a respect for the cultural diversity of democracy's many potential or actual friends. We should stand proud of the rise of democracy among our allies without carping about some aspects which do not yet fit our patterns. We should encourage germs of democracy whenever they show themselves (El Salvador, South Africa) without imposing an exacting set of immediate demands which pay no respect to the circumstances, cultures, and traditions of these countries.
The universality of our principles need not and must not deprive us of our common sense. If we compare Morocco and Algeria, for instance, the fact that the rights of political opponents are not satisfactorily protected in either country should not blind us to the fact that pluralism of culture, of the press, and of parliamentarian life, exists in Morocco more than in socialist Algeria. People who today protest violently against apartheid in South Africa, without realizing the explosion that "one man, one vote" would create instantly, ought to remember that in France, "the motherland of human rights," the female portion of the population lived in political apartheid until 1946 when women were granted the right of voting. Some Swiss cantons have not granted women this right to this day.
We detract nothing from the stature of our universal principles by recognizing that much of our policy must be ad hoc. In fact, only by respecting the diverse traditions and circumstances of different peoples, and by shaping incentives and inducements appropriate to each case, can we hope for gradual realization of democracy. We mislead ourselves, and we undervalue our cause, if we think that democracy is the work of a day.
Not only our actions but our arguments on behalf of democracy, should vary according to the distinct conditions that prevail in different parts of the world. To the young and fragile democracies in Latin America we should clearly expose every aspect of the subversive and oppressive designs of Castro's Cuba. We should awaken every candid advocate of democracy to the systematic, Marxist-Leninist strategy of ideological, political, and military aggression pursued by the Soviet Union through its Cuban and Nicaraguan proxies throughout the hemisphere. And we should not let Castro's neighbors forget Cuba's role as a pawn of Soviet imperialism in Africa, with whose people the Latin Americans have strong ties of sympathy and interest. With Arabic or Islamic regimes we should emphasize Soviet aggression in Afghanistan. We should display in Kuwait, Saudi Arabia, and the Emirates, for example, the image of Arafat grinning with glee at the Kremlin in the aftermath of the Soviet invasion of Afghanistan. And we should constantly demonstrate to all the worldwide network of Communist terror and aggression.
On the constructive side, democracy must sing the praises of the heroes of freedom. Commandant Mazud of Afghanistan, Jonas Savimbi of Angola, and Lech Walesa of Poland should become cult figures for the youth at a moment when there are more guerrilla fighters on the side of the Free World than for the other side. The reversal of the Guevara myth should stir young hearts in the post-Vietnam generation.
And again, with different regions and different cultures we should emphasize different heroes and different symbols of freedom. Like the apostles, democracy must speak in many tongues. We must make the political doctrines of democracy understandable to peoples who have not, like us, imbibed them with their mothers' milk. We must encourage the spirit of democracy in the multitude of forms in which it is expressed around the world. Encouraging the spiritual and religious motives of Islamic fighters against Leninist, atheistic oppression is a democratic duty which is perfectly consistent with opposition to the fanaticism of a Khomeini. Similarly, the Church in Latin America should be encouraged in its role as guardian of human rights and liberties. This is our best ally against the Marxist-Leninist exploitation of the theology of liberation.
To reconquer the lands that have been captured by forces of Leninist oppression and render them to freedom and democracy, the tactics must be manifold, though they should be guided by a single strategy of displacement. Flexible response should be introduced in these political and cultural matters within the horizon of the universal principles of democracy. But the possibility of this supposes memory, analysis, and will power that are now only a latent potentiality of the democracies.
"Know yourself, know your adversary." This was Sun Tzu's advice to the strategist. "If you know yourself without knowing your adversary, or if you know your adversary without knowing yourself, your chances of victory are fifty percent. If you know yourself and also your adversary, you will be happy in all battles. But if you do not know yourself or your adversary, you have to fear everything."
It is most urgent that in the Western world at large the culture of democracy should be restored as subject in our schools and academies. This cannot be done without a rehabilitation of the humanities; I see with pleasure that the future commanders of American military forces receive not only a high technical training, but also a new course in the humanities. Without an ethical education and civic instruction, how will our youth have any idea what they will have to battle for?
We must encourage intelligent, public skepticism toward the disinformation that is consciously and unconsciously conveyed in our printed and audio-visual media. But, what is much more important, we must endeavor to provide our future journalists with sound educations so that they will themselves be proof against disinformation. We have too long felt the consequences of a journalism whose frame of mind is overwhelmingly behaviorist and relativist. And our politicians have often learned the same lessons as our journalists.
Montesquieu, in the Esprit des Lois, noted the importance of a people's love of its institutions. Well, certainly the institutions of freedom deserve such a love. And we must have such a love for them if we are to combat the hatred of free society, of capitalism, and of constitutional institutions that animates Marxist-Leninist aggression. Such love must be fostered at home, on the campuses, in the churches, so that this cause of freedom, adored of our hearts and ratified by our reason, may prevail against the assaults of Marxism-Leninism.
So long as we continue to view the Soviets as crude reflections of our own liberal selves, we will defeat ourselves. We must cease to be distracted with naive chatter about "hard-liners" versus "moderates" in the Kremlin. Anyone who survives and rises to the summit of Soviet power is as cynical, as ruthless, and as orthodox as Stalin. Our future diplomats should receive compulsory training in the harsh truth about Marxism-Leninism and the Communist system. We should not have to await the next issue of Playboy to learn that Tomas Borge is a Leninist.
As a final reflection, I must add that the hopes placed by the democracies in social-democratic forces have been misplaced. The social-democracies are no longer able to play the role of a rampart against Communism. The infiltration of the Socialist International by the Soviets and their surrogates is a clear witness to this fact. The vulnerability of Socialist France is another.
The Free World has to bet decisively on conservative forces, who understand the relation between constitutionalism and capitalism and the place of personal liberty and dignity in each. The reinforcement of a conservative international and the definition of its role in promoting democracy in the world is now an urgent necessity.
*Cf. Jean-Marie Benoist, Marx est mort (Paris: Gallimard, 1970) and Time, September 5, 1977, cover story: "French New Philosophers Speak Out."
THE DEATH KNELL OF THE BIRD COURT
By Edward J. Erler and Ernest O. Vincent
Public opinion sets bounds to every government, and is the real sovereign in every free one.
- James Madison
A specter is haunting California-the specter of Rose Bird. Under her watchful eye the California Supreme Court has mounted a sustained assault against the principles of constitutional government and the rule of law. It is merely an exaggeration to say that the only thing that stands between the people of California and the state of nature is this November's judicial confirmation election.
California's first constitution, like that of most other states, provided for popular election of judges. The present system of judicial selection was instituted in 1934 as part of the "good government" movement. It was actively supported by California's leading Progressive, Earl Warren, who touted it as a measure designed to combat what was then considered to be an alarming increase in the crime rate abetted by a corrupt judicial system! Two constitutional initiatives were placed on the ballot in 1933; one called for the appointment of trial judges and their confirmation by popular election, the other provided the same mode of selection and confirmation for appellate judges. Of the two initiatives, only the latter was approved by the voters. Court of Appeals judges, including members of the Supreme Court, serve twelve-year terms. When vacancies occur, the Governor nominates a replacement who must then be confirmed by the three-member Commission on Judicial Appointments. This commission is composed of the Chief Justice of the Supreme Court, the senior appellate judge in the district where the appointment is made, and the Attorney General. After appointment the judge must be confirmed in the next general election following appointment, again at the expiration of the original twelve-year term, and every twelve years thereafter. Chief Justice Bird was appointed by Governor Brown in 1977, faced a confirmation election in 1978 in which she narrowly escaped defeat (48.3 percent of the people voted against her confirmation), and faces reconfirmation in November 1986, the expiration date of the twelve-year term of her predecessor. No appellate judge or Supreme Court justice has ever been turned out of office in a confirmation election.
Bird and her supporters claim that November's election will compromise judicial independence. Judicial independence is, Bird maintains, the foundation for the rule of law. It is undoubtedly true that an essential ingredient of judicial power is independence. But, we must ask, "Independence from what?" Bird answers unequivocally: "Independence from popular majorities." Why? Because the majority represents only a special interest, and the rule of law must represent the common good. Bird thus sees the majority as nothing more than another special-interest group, aggrandizing its interest at the expense of the various "discrete and insular minorities" in society. Whereas it was once thought that the majority in a pluralist society could rule in the interest of the whole, now the majority is seen by Bird and her cohorts to be the principal obstacle to the promotion of the public interest. If, therefore, democracy is to work for the common interest, the essential task of ruling must be given over to a vanguard who can act in the majority's stead; i.e., act in the way that the majority itself would act if it were uncorrupted by its own particular interests. In Bird's view, the courts must fill the role of the public-spirited vanguard; this reasoning has provided the justification for the Bird Court's wholesale rewriting of the Constitution and duly enacted laws to comport with its own notion of "fairness" and "justice."
Thus we are told not to judge judges on the basis of their decisions or their judicial philosophy, but only on their physical and mental competence. Mere disagreement with the decisions rendered by the judiciary or with the political philosophy of the judges will allegedly compromise judicial independence. We are instructed by the most enlightened opinion that we must vote to reconfirm Rose Bird however odious her decisions may be and however ill-suited her judicial philosophy is for the preservation of free government. According to the liberal vanguard, judicial independence, not the consent of the governed, is the bulwark of a free government. In short, the voters are asked to make a politically neutral decision to preserve the "independence" of a manifestly political Supreme Court. Since constitutional devices already exist to disqualify judges for mental and physical incompetence, it is only too obvious that confirmation elections were intended to have another purpose. If the voters cannot make electoral judgments based on what the judges decide and what those decisions indicate about a judge's understanding of constitutional principles, what is the purpose of confirmation elections? What, indeed, is the purpose of the judiciary?
But, of course, an independent judiciary, if it means anything at all, means only that the judiciary should not be subjected to the temporary passions or prejudices which may from time to time actuate a majority. The Constitution represents the superior will of the people because, in John Marshall's words, it embodies the "original right" of the people to form the "fundamental" and "permanent" conditions for their self-governance. And this will, Marshall continued, was intended to provide "a rule for the government of courts, as well as of legislatures." The will of any subsequent majority formed according to constitutional procedures does not have the same authoritative status as that superior will, which created the Constitution. The Court, of course, must intervene against the will of such subsequent majorities for the vindication of individual constitutional rights, or to protect the Constitution itself from being violated by these transient majorities. This is the primary role of the judiciary in constitutional government. Judicial independence cannot mean that the judiciary has sovereign power to reject the superior will of the people as embodied in the Constitution, or expressed in such laws that are, by the Court's own admission, made pursuant to the Constitution. This would usurp the people's "original right," a right that rests at the very foundation of constitutional government.
The people may not have the technical expertise to be judges themselves, but it does not require technical expertise to evaluate the performance of judges or other experts. Associate Justice Stanley Mosk has compared the complexity of the Court's decision-making process to brain surgery. We would not, he argues, presume to advise a brain surgeon on the technical intricacies of his art. And by parity of reasoning we should not presume to advise judges about the performance of their equally intricate tasks. But must we ignore the results? Are we obliged to place ourselves in the care of a brain surgeon who has never had a patient survive one of his operations? Surely it does not require the expertise of a brain surgeon to make intelligent judgments about his performance. After all, how much expertise does it require to know the difference between a dead man and a living one? It requires no more expertise to know the difference between judicial independence and judicial tyranny. It is disingenuous-if not dishonest-to argue that public debate on matters of pressing public concern will compromise judicial independence. Voters are perfectly competent to decide matters which are subjected to vigorous public debate-and this November "the people shall judge."
The Death Penalty
Despite the Chief Justice's protestations to the contrary, the death penalty is the issue of the confirmation election. This issue touches upon the fundamental principles of constitutional government and the rule of law. Long ago, John Locke made the salient observation that "Political Power" or "Sovereignty" comprehends the "Right of making Laws with Penalties of Death." And, as Locke also noted, in every free government the people are the ultimate sovereign. A political community without sovereignty is a mere solecism. Well-defined sovereignty is therefore a necessary-although not sufficient-condition for the rule of law. The people of the state of California have expressed overwhelming support for the California death penalty law. Polls indicate that 86 percent of Californians believe that "some crimes are so awful that committing them revokes all human rights, including the right to life." In a pluralistic and heterogeneous society such as California, this is virtual unanimity. But the liberal vanguard refuses to acknowledge the legitimacy of this opinion.
Justice William Brennan of the United States Supreme Court recently expressed his "fixed and immutable" opinion that it was a "fundamental premise that even the most base criminal remains a human being possessed of some potential, at least, for common human dignity," Thus, as Brennan reasons, "the calculated killing of a human being by the State involves, by its very nature, an absolute denial of the executed person's humanity," The State must therefore "treat its citizens in a manner consistent with their intrinsic worth as human beings . . . so as not to be degrading to the very essence of human dignity." Even conceding, merely for the sake of argument, that the language of human dignity might be inferred from the Constitution, Brennan is totally mistaken about what constitutes human dignity. He seems never to have considered the fact that a country that honors those who, by their actions, have demonstrated no regard for human dignity is dishonoring human dignity itself. If the Constitution stands for the ultimate human dignity of the individual, as Brennan insists, then according honor to those who refuse-by murder, rape, torture, or other inhuman acts-to recognize the dignity of others would simply convert the Constitution into a suicide pact. A true regime of human dignity honors those who demonstrate a regard for human dignity by honoring the laws and the Constitution, and dishonors those who are either unable or unwilling to recognize the human dignity or human rights of others. The people of California, however, have clearly demonstrated that they understand the true meaning of human dignity: A recent poll shows that 71 percent of the citizens of California believe that "the death penalty affirms the value that society places on life."
In People v. Andersen (1972), the California Supreme Court invalidated the death penalty law as a violation of the California Constitution's prohibition against "cruel or unusual punishment." Since the United States Supreme Court had never declared the death penalty unconstitutional under the Eighth and Fourteenth Amendments' ban on "cruel and unusual" punishment, the California Court relied upon a doctrine known as independent state grounds. This doctrine allows the California Court to make more liberal or expansive interpretations of provisions in the California Constitution which are similar to those in the U.S. Constitution. This decision was almost immediately overturned by the people of California when they passed a death penalty initiative in the election of November 1972. Just prior to this election, however, the United States Supreme Court handed down a decision, Furman v. Georgia, which invalidated death sentences as "cruel and unusual punishment" where sentencing procedures allowed "untrammeled discretion" to judges or juries in imposing sentences. The California legislature responded by passing another death penalty statute in 1973. In an attempt to satisfy the requirements of Furman, the new statute left no discretion to juries. Three years later in Gregg v. Georgia, the U.S. Supreme Court invalidated the use of mandatory death sentences which disallowed the consideration of mitigating circumstances. The California Supreme Court immediately seized upon this rationale in Rockwell v. Superior Court (1976) to strike down California's mandatory death penalty statute. In 1977 the state legislature responded once again, passing a new death penalty statute over the veto of then-Governor Jerry Brown. In 1978 the people of California saw fit to strengthen the death penalty law by passing the Briggs Initiative. In People v. Jackson (1980) this saga only apparently came to an end when, after much equivocation and tergiversation, the California Supreme Court upheld the constitutionality of the 1978 law over the vigorous dissents of both Chief Justice Bird and Justice Mosk.
The Death Penalty and Procedural "Fairness"
To date no death sentences have been carried out. Of the 55 death penalty cases that have gone to the California Supreme Court on automatic appeal, only three have had the death sentence affirmed, and in these three further appeals are pending. In five of these cases, death sentences have been overturned twice. Although Chief Justice Bird is the only member of the Court who has voted to overturn the death penalty in all 55 cases, the Court generally has shown a reluctance to affirm death penalty sentences which borders on dilatoriness. Nevertheless, the people of California have been assured that these sentences will be carried out as soon as the procedural defects in the trial proceedings have been corrected. As Chief Justice Bird has stated, "You don't execute somebody unless you're sure that the trial's been fair and that they have been tried under constitutional law. I think the people of the state of California have a right to be sure that when a person goes to his death here, he will go under a constitutional law after a fair and impartial trial."
But the facility with which the Bird Court creates new procedural requirements makes it unlikely that there can ever be a "fair and impartial trial." It is only a slight exaggeration to say that no trial judge in California knows-or can know-what a procedurally fair trial is. The Court, under the leadership of Bird, counts every procedural error as a material defect in the outcome of the trial, regardless of whether the error was harmless or not. This manner of proceeding, of course, manifestly violates Article VI, Section 13 of the California Constitution which provides that "No judgment shall be set aside . . . for any error as to any matter of procedure unless . . . the error complained of has resulted in a miscarriage of justice."
"Intent to Kill" Rulings
No clearer example of the Bird Court's use of procedures to defeat both the letter and the spirit of the law can be found than its decisions involving the issue of "intent to kill" in felony murder cases. The 1978 Briggs Initiative deleted the intent provision of the 1977 death penalty law in certain "special circumstances" cases, those involving multiple murders and murders committed in the course of a robbery, burglary, rape, arson, and child molesting. It also directed that a jury must impose either the death penalty or life imprisonment without possibility of parole in any case involving one or more such special circumstances.
In 1983 the Bird Court handed down its decision in People v. Carlos. Justice Allen Broussard, writing for a majority which included Bird, Mosk, and Cruz Reynoso, argued that the Briggs Initiative could not have intended to delete the intent requirement from the prior law. Broussard's main line of reasoning was as follows: Under the 1977 law, felony murders not involving special circumstances (and which do not therefore carry the death penalty) require a showing of intent to kill. If the 1978 Briggs Initiative were read as deleting this requirement in special circumstances cases, then we would be faced with the anomaly that murders committed under special circumstances which may be accidental could be punished by death whereas those non-special circumstances felony murders which were proved to be intentional could not be punished by death. Disdaining to interpret the plain language of the Briggs Initiative, Broussard wrote that "the adoption of a law to permit infliction of the death penalty upon an accidental killer would be a momentous step, raising grave moral questions." But Broussard failed to recognize that the appropriate comparison is not between an intentional murder and an "accidental" one. Rather, it is between an intentional murder and one which may have been unintended but was committed in the course of "an inherently dangerous felony." Someone who intends to commit an armed robbery must also be presumed to have intended-and therefore bear responsibility for-whatever occurs in the course of the robbery. A murder committed under these circumstances can hardly be described as "accidental." Once this fact is realized, there is, of course, no anomaly which could possibly offend the sensibilities of anyone who recognizes the importance of individual moral responsibility to the rule of law.
Because the Briggs Initiative required a showing of intention with respect to accomplices in special circumstances felony murders, Broussard assumed that the law must be read to extend intent requirements to actual killers as well. But he relied on the dishonest use of legislative history to support his assertion. During the election campaign, opponents of the Briggs Initiative wrote that the proposed change in the intent standards would make a person who unknowingly loaned a screwdriver to his neighbor, who then used it to commit a special circumstances murder, himself subject to the death penalty as an accomplice. Supporters countered that this was a misinterpretation of the initiative because there was a clear requirement to prove intent on the part of aiders or abettors to a killing.
Broussard calculated that because the language relied upon by the proponents of the Initiative in support of their argument also seemed to include actual killers, the framers of the initiative must have included those killers within the intent requirement as well. The initiative reads that "every person whether or not the actual killer found guilty of intentionally aiding, abetting . . . or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole." As Justice Frank Richardson pointed out in his powerful dissent, the plain import of this language, when read in its appropriate context, applies the intent requirement only to accomplices and not to the actual killer. The provision could not possibly refer to the actual killer because, in terms of the explicit language used, the killer would have to be at one and the same time both accomplice and killer. Richardson went on to characterize the Court's interpretation as "patently incorrect, adding, as it does, an element of intent, which the sovereign people specifically deleted from prior law by adopting the 1978 initiative measure." Richardson continued his argument, touching not only upon the major failings of this opinion, but also on the general ideological predisposition that has come to characterize the vast majority of the Bird Court decisions:
In an age when the state and nation are awash with murders and violent felonies, it is within the power of the Legislature or the people themselves by initiative to judge which felonies are deemed more serious, and to include only those offenses within the felony murder special circumstances statute. . . . The majority [of the Court] by interpretation has recast the 1978 death penalty law in a manner which effectively nullifies the felony murder special circumstances provision, thereby requiring reversal and retrial of numerous cases presently pending on appeal. . . . In doing so, the majority has ignored sound principles of statutory interpretation and constitutional law, and has thwarted the people's will in their-adoption of the 1978 law.
Eight months later, People v. Garcia made Carlos retroactive, requiring the retrial of 95 death penalty cases and 85 life-without-possibility-of-parole cases. Having established an entirely new intent-to-kill requirement that was not mandated by the terms of the Briggs initiative, and in fact was conspicuously excluded by that initiative, the Bird Court has proceeded to overturn a number of death penalty sentences on the basis of what it now terms Carlos-Garcia error. In People v. Fuentes-one of the so-called "New Year's Eve Massacre" cases in which the Bird Court overturned 11 death sentences on December 31, 1985-the Chief Justice remarked that "a finding of intent to kill was by no means a foregone conclusion." Fuentes had killed a Brinks guard during the course of an armed robbery, firing five shots into the guard's chest from close range. Bird contemptuously dismissed any presumption of intent arguing that, despite evidence to the contrary, "the jury might reasonably have found that the shots were fired with the intent to wound the guard-so that he would release the moneybags-so that the robbers could make their escape."
In a similar case, People v. Boyd (1985), the jury had found the defendant guilty of murder during the course of a robbery. Justice Broussard, writing for a unanimous court that included Bird, Mosk, Reynoso, Joseph Grodin, and Otto Kaus, reasoned that:
the way in which defendant killed . . . suggests that defendant intended the killing. Defendant shot [the victim] in the heart from a distance of a few feet, then fired five more shots when [the victim] tried to escape. Nothing in defendant's conduct at the time of the killing or afterwards suggests that defendant pulled the trigger accidentally, that he intended only to frighten or to wound the victim, or had any intent except to kill.
Nevertheless, Broussard concluded that the jury verdict "did not necessarily establish that defendant intended to kill" because the trial court did not instruct the jury that intent to kill was a necessary ingredient to prove special circumstances. The reason the trial court did not do so, of course, was that the trial took place before the Court's decision in Carlos. The verdict was overturned even though a unanimous court agreed that there was absolutely no doubt about the intention of the defendant to commit felony murder and that the instructions to the jury on the necessity of finding intent could not possibly alter the Outcome of the trial.
In another "New Year's Eve Massacre" case, People v. Hamilton, the Court reversed the death sentence of a defendant who had been convicted of murder during the course of a robbery. The victim's body had also been dismembered. Medical experts testified that they were unable to determine whether "the victim was alive or dead when her head was cut off." The Court set aside the death sentence because, once again, the trial judge failed to instruct the jury on the necessity of proving intent to kill in felony murder special circumstances cases. Justice Kaus's irrefragable logic led him to conclude that "although the evidence would arguably support a finding of intent to kill had proper instructions been given, it manifestly does not establish intent to kill as a matter of law. The victim might have been killed accidentally, with defendant deciding afterwards to mutilate the body in an attempt to prevent identification." Justice Malcolm Lucas responded in an acerb dissent, noting that "We cannot reverse a judgment, even a death penalty judgment, based on nothing more than mere speculation or surmise." "It is simply inconceivable," he continued, "that if the killing were indeed 'accidental,' defendant would have neglected to attempt to prove that fact" at trial, since it would have been a "strong mitigating factor at the penalty phase." But-we may add-who can possibly fail now to see that what is inconceivable has become the stock in trade of the Bird Court.
In still another "New Year's Eve Massacre" case, People v. Hamilton (no connection to the above case), the Court held that an intent to kill could not be inferred in a multiple shotgun murder where three victims were shot and killed at close range, requiring that the shotgun be reloaded four times. In dissent, even liberal justice Grodin pointed out the absurdity of an adherence to the Carlos-Garcia intent doctrine:
I conclude it is inconceivable that any reasonable juror would have found defendant lacked intent to kill. . . . Given this methodical sequence of events, the evidence of planning, and the unusually solid victim-witness and expert witness testimony supporting these facts, nothing defendant could possibly have said or produced, and nothing within the realm of reasonable speculation as to that evidence, could possibly have detracted from the conclusion that defendant intended to kill.
Thus Grodin, in a case signaling his belated attempt to distance himself from the Bird majority, argued that this so-called Carlos-Garcia error, if an error at all, was merely a harmless error.
In the most bizarre of the "New Year's Eve Massacre" cases, People v. Silbertson, the Bird Court reached new heights in refusing to allow the slightest hint of common sense to enter into its deliberations. Defendant was charged with felony murder in the course of a robbery. Defendant's counsel, however, argued that it was not a murder committed in the course of a felony (robbery), but in fact an intentional murder to which the act of robbery was incidental-an attempt to disguise the real motive of the murder. Using this argument, defendant's counsel hoped to avoid a death penalty verdict by showing that no special circumstance existed. Counsel therefore had to present a strong case at trial that defendant had actually intended to murder the victim, and had never intended to rob him. Counsel argued this intent theory vigorously to the jury: "Intent? . . . the intent here is pretty darned clear. . . . And to ignore that is to ignore the realities here, ladies and gentlemen." Despite counsel's rather ingenious attempt to save his client from a death sentence, the jury was unconvinced and convicted the defendant of felony murder committed in the course of a robbery and sentenced him to death. On automatic appeal to the Supreme Court, the death sentence was vacated. In an opinion written by Kaus and joined by Bird, Reynoso, and Broussard, the Court noted that "the question of intent was indeed raised, though in a perverse fashion." Nevertheless, the defense counsel was "unaware that intent to kill was an element of the felony murder special circumstance" and therefore may have indeed "failed to present all credible evidence which might negate the element of intent-for example, additional evidence to the effect that the actual shooting was accidental." In dissent. Justice Mosk was forced to point out the obvious fact that a retrial on the issue of intent "would be an aimless exercise."
The issue of jury instruction provides additional insight into the ideological predisposition of the Bird Court and the extreme lengths to which it will go to circumvent California's duly enacted death penalty statute. The leading case is People v. Ramos (1982) in which the Court held a provision of the Briggs Initiative unconstitutional as a violation of due-process rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. At issue in Ramos was the jury instruction required by the Briggs Initiative that all jurors be told that "the Governor has the power to render the defendant eligible for parole if the jury does not vote to execute him." The Court, in an opinion by Justice Matthew Tobriner (joined by Bird, Mosk, Kaus, and Broussard), argued that "the jury's induced consideration of this possibility leads it into an area where it has no guidelines, and in which its conclusion must be entirely speculative" because it may be based "on the jurors' perception of the present or some future governor's philosophy or possible action." According to the Court, this situation is compounded by the fact that the Briggs instruction does not mandate that the jury also be instructed that the Governor can commute a death sentence to one of life in prison. Justice Richardson in dissent pointed out a logical fallacy in the majority's reasoning:
The majority suggests . . . that the instruction mandated by the 1978 law is incomplete in its failure to advise the jury that the Governor may commute a sentence of death as well. . . . It is difficult to understand how or why a defendant would ever desire such an instruction, which could only lead the jurors to minimize the seriousness and severity of the death penalty.
This decision was appealed by the State of California to the United States Supreme Court. The High Court, in an opinion written by Justice Sandra Day O'Connor, agreed with Justice Richardson's dissent, finding that the Bird Court's contention that the Federal Constitution had been violated was "puzzling." This time it fell to the United States Supreme Court to point out the obvious: "We are not convinced that the Briggs Instruction alone impermissibly impels the jury toward voting for the death sentence. Any aggravating factor presented by the prosecution has this impact." As the Court concluded, "The State is constitutionally entitled to permit juror consideration of the Governor's power to commute a life sentence. This information is relevant and factually accurate and was properly before the jury."
Undeterred, the California Supreme Court reheard the Ramos case in 1984. Noting that the United States Supreme Court had disagreed with its earlier decision, the Court concluded that the Briggs instruction, even though it may not have violated the Federal Constitution, nonetheless violated the California Constitution's due process guarantee of "a fundamentally fair decision-making process." But as Justice Lucas pointed out in dissent, the majority was simply dishonest in its attempts to rely upon the California Constitution to uphold its idiosyncratic view of fundamental fairness. This holding, he wrote,
frustrates the spirit, if not the letter, of the very Constitution on which the majority so belatedly relies. Article I, Section 27 of the California Constitution, adopted in 1972 by the people of this state, was intended to reinstate the death penalty "to the extent permitted by federal constitutional law." Federal constitutional law, as interpreted by this nation's highest court, now clearly permits the jury in a death penalty case to be informed of the Governor's commutation power. Accordingly, by reason of Article I, Section 27, we have no authority to impose additional restrictions or procedures not required by federal law. In my view, the Briggs instruction is constitutional. The majority's contrary holding ignores the people's will as expressed in their own Constitution.
People v. Easley (1983) began another series of cases involving Briggs instructions. Again the Bird Court exercised great ingenuity in rewriting the death penalty statute to comport with its own notions of "fairness" and "rationality." The Briggs Initiative required that the penalty phase jury be instructed as follows: "You must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." The Court disallowed the use of this instruction, reasoning that it precluded the jury from giving due consideration to any evidence of mitigating circumstances presented by defendant. The majority opinion, written by Kaus and joined by Bird, Broussard, Reynoso, and Grodin, mistakenly relied upon United States Supreme Court decisions which held that any evidence of mitigating circumstances must be taken into consideration by juries in death sentence deliberations. In Lockett v. Ohio (1978), the Supreme Court remarked that the sentencer may not be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." In applying this rationale to the Briggs instructions, the California Court erred in considering "pity" or "sympathy" to be mitigating evidence, when in fact these terms refer not to evidence but to the emotional disposition of the jurors. This was precisely Justice Mosk's point in his dissent in People v. Lanphear (1984) where he noted that "Sympathy . . . is not a characteristic of the defendant; it is an emotion of the jurors." Thus pity cannot be considered as evidence of mitigation that the U.S. Supreme Court said must be considered as an aspect of defendant's character. It is clear that the Bird Court's reliance on federal authority for its construction of the Briggs Initiative is wholly misplaced. In effect the Bird Court has forced trial courts to give far greater weight to mitigating factors than the law intended by including pity or sympathy as among those mitigating factors that the juror must take into consideration. In sum, the Court's criticism of the Briggs instruction in Easley amounts to this: "The instruction may very well have eliminated any chance Easley had to escape the death penalty."
In People v. Walker (1985), another New Year's Eve Massacre case, the Court seemed to go beyond the Easley rationale in vacating defendant's death sentence. Defendant had been convicted of the execution-style murder of a fifteen-year-old boy who pleaded with defendant to spare his life. His piteous plea fell upon unsympathetic ears. At trial two witnesses had testified "that defendant had been helpful to them in past years." Although the trial judge had instructed the jury that "pity and sympathy for the defendant would be proper considerations if you should find them to be warranted in the circumstances," the Bird Court found these instructions inadequate. The instructions were defective because "it is not sufficient to tell the jury that it may consider 'sympathy' for the defendant if it is then told to determine the penalty by weighing specific aggravating and mitigating factors, none of which appear to include the facts on which defendant bases his plea for sympathy." In short, the judge is obliged not only to inform the jurors which factors deserve their pity and sympathy, but also that these factors must be considered as a part of the mitigating circumstances. In effect, the Court is demanding that the trial judge argue the defendant's case under the guise of merely providing jury instructions!
Still another weapon in the Bird Court's ideological arsenal is its use of the issue of effective counsel to overturn death sentences. Up to this point the Bird Court has appeared merely to be dilatory and irrational. This issue reveals it to be schizophrenic as well. In a surprising decision written by the otherwise competent Justice Richardson in People v. Mozingo (1983), a unanimous Court held that the defendant had been denied the effective assistance of counsel because his attorney acceded to defendant's demands that he present an "alibi defense." The attorney's advice, based on his professional assessment of the case, was to present an insanity defense. In a trial that rehearsed some of the most horrid and gruesome facts ever assembled in a court of law, defendant was found guilty of special-circumstances felony murder and sentenced to death. On appeal, the California Supreme Court overturned the death sentence, remarking that "counsel must attempt to investigate the issue despite his client's objections, and thereafter inform and advise his client accordingly, leaving the ultimate decision to him." Defendant's attorney chose not to investigate the possibility of a mental defense because it was utterly incompatible with the presentation of a case where defendant denied complicity in the murder through the use of an alibi. Had counsel actually used this defense, real grounds for incompetence would have been only too manifest.
People v. Frierson (1985) was almost the exact reverse of the situation in Mozingo. Frierson asked counsel to present a diminished-capacity defense. For sound tactical reasons, defense counsel did not accede to his request. Counsel calculated that because overwhelming evidence existed that the defendant had killed his victim in order to escape identification, this fact would make it impossible to allege diminished capacity. Such calculation and planning, defendant's counsel reasoned, could hardly be represented as the actions of someone of "diminished capacity." The Court ruled that defense counsel's decision was evidence of ineffective assistance of counsel and overturned the death verdict. Since the Court held that there is a personal right on the part of the defendant to participate in his own defense, he may seek actions contrary to counsel's advice. "In such a situation," the Court remarked, "the attorney's obligation is simply to provide the best representation that he can under the circumstances" (precisely what Mozingo's attorney had done). If a defense counsel, mindful of the defendant's right to participate in his own defense, accedes to defendant's suggestions for an effective defense against his own judgment and loses in a penalty phase trial, under Mozingo he will be judged incompetent; if, however, he refuses, and loses in a penalty phase trial, he may be judged incompetent under Frierson. These two cases, whatever else they may stand for, make it abundantly clear that what is best under the circumstances is left for the Supreme Court to decide after the fact, not the attorney at the time of the trial. This line of reasoning, of course, allows the Court untrammeled discretion in determining when the "denial" of the right to effective counsel must be deemed to have vitiated an otherwise proper sentence of death. As Professor Phillip Johnson has recently remarked, "Reversing verdicts whenever defense counsel fails to present some farfetched defense creates the paradox that the most effective way to defend a capital case may be to defend it ineffectively." Under these circumstances, of course, the rule of law has become a mere charade.
But the mind grows weary. Common sense retreats before the onslaught of sophistry. We have touched upon issues that we consider to be representative of the Bird Court's machinations against the Constitution and the laws of the state of California. We have by no means concentrated on the most egregious abuses of judicial independence on the part of Rose Bird and her activist colleagues, Grodin, Reynoso, Mosk, and Broussard. We could have discussed to our advantage the issue of jury selection in death-penalty cases. For example, Bird would not allow the systematic exclusion from death-penalty juries of those who would automatically vote against the death penalty in every case. Her reasoning is that since opposition to the death penalty represents a significant opinion in the community, the exclusion from juries of those who categorically oppose the death penalty violates the fair cross-section requirements of jury selection. This is her very subtle way of ensuring that no jury will ever return a sentence of death. We could also have mentioned how the Bird Court has attempted to rewrite the Victim's Bill of Rights by engaging in tergiversations and equivocations about the meaning of ordinary words ("shall" must mean "may"; "and" must mean "or").
Also, the Court's egregious abuse of the technicalities and intricacies of search-and-seizure rules to discredit evidence of crimes could be recounted in a very revealing manner. This would inevitably involve discussion of People v. Frank (1985), a case involving the brutal torture and murder of a two-year-old girl. The Court's own description of the circumstances of the crime is graphic:
An autopsy revealed that Amy had sustained a number of injuries prior to her death. As a result of pressure from a pliers-like instrument, her nipples had been pinched and partially pulled away from her body. She had suffered three blows to her head, knife-like scratches on her chest and abdomen, and ligature marks on her wrist and ankles. The entrance to her vagina was torn and the hymen broken, possibly by insertion of a penis; her anus exhibited evidence of trauma indicating that a foreign object had been inserted there as well. Sperm were discovered in her vaginal area. Her blood had a .03 percent blood alcohol level, which could result if a child her size had ingested two cans of beer shortly before death. The actual cause of death was strangulation.
Defendant was known to be a "recidivist child molester"-having committed other brutal crimes of almost the same nature-and had been released from Atascadero State Hospital less than two months before the commission of this crime. During his hospital incarceration, Frank had kept personal diaries and notebooks recounting in morbid detail what the Court delicately described as "numerous random thoughts of an intimate nature, relating mainly to his emotional and sexual life." The entries described "his propensity to molest children [and] general remarks about his modus operandi, and specific references tending to link" defendant with other similar crimes. Although these notebooks were used by the prosecution in both the guilt phase and the penalty phase of the trial, they were not crucial to the prosecution's case. There was overwhelming evidence apart from the notebooks establishing beyond doubt that Frank had been the perpetrator of the crime.
On the issue of the unreasonable search and seizure, the Court, in an opinion written by Mosk, held that the warrant which authorized the search was overbroad in its description of the items to be searched and seized. The warrant had simply used standard "boilerplate" language, which nevertheless did specifically authorize a search for personal diary notations, scrapbooks, newspaper clippings, photographs, and "writings which could relate to the death of Amy." Mosk indignantly complained that "there is not the slightest showing that the criminalists ever referred to the warrant for guidance on what they could seize. . . . It is apparent that the notebooks-like all the documents taken in this search-were seized not because they were listed in the warrant, but simply because after looking at them the officer suspected they might be incriminating." The real defect of this search and seizure was that "nowhere . . . was there alleged one single fact that gave probable cause to believe that any of the boilerplate allegations of the warrant were true." And it is precisely this imprecision with respect to the probable cause that "unreasonably" interfered with Frank's "right to privacy." Because of these arbitrary actions-which were taken with the complicity of the judge who issued the warrant-the death sentence was overturned. Justice Bird believed that this outrageous behavior also warranted the overturning of the conviction as well as the death sentence. But again, the mind grows weary; the Bird Court's assault upon the Constitution and the rule of law seems to know no end.
In November the people must make a frank decision about their judiciary. Chief Justice Bird has recently stated her defiant resolve: "It is easy to be popular; it is difficult to be just." One suspects, however, that Rose Bird and her most enthusiastic supporters on the Court, Reynoso, Grodin, and Mosk, have not incurred the antipathy of the people of California because they have been just, but because they have manifested their injustice in a way that most threatens a self-governing polity. A self-governing polity requires an independent judiciary, not "government by judiciary."
AFTER THE FOX: FICTION IN THE MODERN AGE
By C. A. McGhee
I recall a college professor of mine who, having the question put to him one day, contemplated the greatest novel ever written. He promptly nominated two candidates and held a debate, entirely with himself, over Tolstoy's War and Peace and Joyce's Ulysses. For some minutes no clear victor emerged, the question being very close, until Tolstoy finally prevailed by a nose, because, if memory serves, this particular professor was partial to a "good read" at bedtime.
Having since taken the time to read those novels, I have come to regard the closeness of this contest as extraordinary. These books are so diametrically opposed not only in style but, more importantly, in outlook that regarding them as closely matched candidates for greatness is impossible. One might as well say, of slightly different matters, that liberty is the grandest of states, but slavery runs a very close second. The camps of Tolstoy and Joyce are two and separate: One cannot join Joyce's, yet keep a foot in Tolstoy's; only a believer in art for its own sake could regard these two men as equally great in kind. They are altogether different: One is, in a sense, rather like a hedgehog, the other like a fox.
Isaiah Berlin first offered the zoological analogy in his essay on Tolstoy's philosophy of history, The Hedgehog and the Fox. A poetic fragment by Archilochus inspired him: "The fox knows many things, but the hedgehog knows one big thing." Berlin notes that these few words may, in a figurative way, "mark one of the deepest differences which divide writers and thinkers, and, it may be, human beings in general." A chasm lies between those who believe in one coherent, organizing truth and those who pursue life in its particulars, pragmatically, without the benefit of any unifying principle. Berlin offers the hypothesis that Tolstoy was by nature a fox who believed in being a hedgehog. This is a wonderful insight, but one too narrowly confined to Leo Tolstoy. Rather, we are all, by nature, foxes confined to this world and limited to our particles of imperfect knowledge. Yet some, like Tolstoy, believe in being hedgehogs while others, like Joyce, believe only in themselves; indeed, men like Joyce insist emphatically on being anything but hedgehogs.
At the turn of this century the great Russian, near the end of life, and the Irishman, young and obscure, drew battle lines for the soul of art to come. Tolstoy sought faithfully, albeit erratically, after one great truth; Joyce, master of manifold techniques, explicitly eschewed that search and denied any ethical or religious element in his work.
The hedgehog looked west from Yasnaya Polyana and saw in the art of the past century a burgeoning degradation. Urgently, he sat and wrote of things once taken for granted, the destruction of which he now feared: that art should have an ethic, that it should teach, uplift, be clear, moving, and entertaining. The clarity of his vision is startling. In the artistic air of his day, in the free-floating strains of Richard Strauss, Debussy and their like, in the nascent fuzziness of the Impressionists and the egotism of contemporary poets, he sniffed out the coming musical absurdities of John Cage, the pointless dribblings of Jackson Pollock and, worse, the erosion of "serious" literature into petty self-consciousness and technical gymnastics. He wrote What Is Art? and it was promptly denounced and thereafter thoroughly ignored. (Criticism of Tolstoy and his What is Art? is not without merit of course, because, as usual, Tolstoy came out hard: emphatic, fanatic, and too often didactic. As in other areas of his thought, his fervor led him astray, especially in his assessment of particular artists: he panned, for instance, all the works of the deaf Beethoven.)
Then came the fox: Unknown to Tolstoy, a young Irishman sat in strange self-exile in Pola, Italy, writing, writing, writing interminable notes to himself about how to write without the very things Tolstoy was trying desperately to preserve, penning the very heresies Tolstoy despised. Joyce was the artist alone, the exile, who fled the vulgar crowd of Dublin even while Tolstoy went to the fields to sweat with his peasants. That Tolstoy, in What is Art? and Joyce, in his Critical Writings should expound contrary philosophies is, then, hardly surprising. But their contrariness is more poignant-and more important-than an abstract clash of separately recorded notions, for Joyce's banishment of ethics from art was only a part of a larger banishment of ethics from life. Alasdair Macintyre has said that we now live "after virtue": In literature we live not only after the death of moral fiction but also after the coronation of its executioner-we live after the fox.
Modern literary criticism regards only technique and, measured by this narrow standard, Tolstoy and Joyce did, indeed, each possess great technical skill. But if reduced to technique, the question of greatness is barren. A similar inquiry in politics would rank Stalin and Hitler with Lincoln and Churchill. Yet the political question posed solely as a matter of power tells us nothing about what a statesman ought to do with his power. Neither does reference to technique tell us what a novelist ought to write. The question is never one of greatness alone, but of great goodness. Leaving art to the assessment of specialists who report only on technique, we end by celebrating nothing more than brilliance of form.
Of course, the foxes pre-empt this inquiry by assuming that there is nothing that a novelist ought to write. For the fox there are only descriptive statements and never prescriptive statements. From the modern critic's point of view, therefore, ethical efforts are naive, almost childish attempts to deny the unpleasant prospect of reality. This literary myopia is a result of the victory of Joyce's philosophy over Tolstoy's. The critical inquiry is not neutral. Joyce's aesthetic has won: what is said means nothing; how it is said means everything.
In art, such shallow thinking seems harmless enough, but written large across all of life, it often reaps disastrous fruit because it presupposes the existence of an elite class that understands, as all others do not, the enslavement of men to forces beyond their control. The elite have discovered that only form matters: Common folk labor under the illusion of substance. Influenced by the dominant intellectual trends, we tend, therefore, to mistake sophistication for profundity, intellect for virtue, and brilliance for true greatness. Further, by looking to form, we develop not only a disregard for the common things, but also for human nature in general and for the idea of free will in particular. This is a simple-indeed, an obvious-truth, for if life has substance, if, in other words, it is by nature moral, then men must be free in some significant sense, but if life is form alone, if it is an incidental consequence of colliding matter, then free will is irrelevant or, at best, trivial. For his part, as W. H. Auden wrote, Joyce "declared that we are lying in the swamp of the Accidental all together."
The hedgehog and the fox, then, compose their art according to two competing conceptions; that is, does art assume as its foremost axiom the equality of men before God, or the diversity of men on earth? Art produced upon the former assumption tends toward the convergence of diverse ways; art produced upon the latter tends toward atomization. But whereas the hedgehog's unifying vision accommodates and embraces the individuality of free men on earth, the purely empirical vision of the fox can never rise above its constituent parts. The abstract "systems" of foxes, whether imposed in the political, economic, personal, or literary realms, are, therefore, wholly arbitrary and artificial efforts to make some sense of chaotic diversity. Every attempt to rule from the philosophical base of the fox is an invitation to tyranny, as the grand tyrannies of Marxism and the petty tyrannies of Freudianism demonstrate. Though more subtle and less dangerous, Joyce's literary regime is no less tyrannical than the regimes of Marx and Freud. So long as we accept Joyce's aesthetic axioms as our own, we will never recognize him for what he is: a grand and brilliant failure.
Instead, Joyce remains triumphant: His aesthetic philosophy, sundered from ethics and God, is now enthroned as the touchstone of the literary age.
The activity of art is based on the fact that a man, receiving through his sense of hearing or sight another man's expression of feeling, is capable of experiencing the emotion which moved the man who expressed it . . . [O]ne man laughs, and another who hears it becomes merry; or a man weeps, and another who hears feels sorrow. (Tolstoy, What Is Art?)
So ran Tolstoy's basic definition of art; but he also took care to warn against seeing "the aim and purpose of art in the pleasure we get from it." This is like arguing that the purpose of food "is the pleasure derived when consuming it." Art is not a construct for pleasure, for the indiscriminate enjoyment of beauty; it is a part of man's nature, a peculiar form of communication with special purpose perhaps as essential to man's moral being as food is to his physical being. Touching their religious and moral nature, true art moves men; it is infectious. Tolstoy therefore recognizes, as Plato did, that bad art may do great harm. Although Tolstoy argues that Plato was wrong to ban poets from his republic because art is indispensable to man, he nonetheless goes on to assert that those who "favor any art that serves beauty" are also wrong. The problem arose, as Tolstoy saw it, in the Renaissance, which presented the "assertion that religion is unnecessary." With the gradual loss of his religious perception, man lost also his moral perception and both faded from the arts. Auden saw the same diminishing faith pointing in the direction of Joycean philosophy. Modern man dispensed with the notion of sin and, consequently, with the notion of free will, the necessary prerequisite to all moral thought and action. This opened up the modern artist to virtually any possibility. Since the traditional and divine points of reference were obliterated, all directions were equally likely, equally noble-or base. By denying moral choice to men generally, artists gained complete artistic license.
In this state, the modern artist has no need to be intelligible to the vulgar crowd. Art becomes "more involved, affected and obscure," unlike that of the Greeks and the Biblical prophets. The modern artist is thus a self-styled demi-god, who says to himself, "I create and understand myself, and if anyone does not understand me, so much the worse for him." It is the wild, uncertainty and the natural tendency of such art toward "perversion" that Tolstoy so despised: "[I]f art may be art, but unintelligible to one of sound mind, there is no reason why an 'artist' should not compose works honoring even perverse principles and feelings and call it art."
Does not Tolstoy's unwelcome vision hang today on the walls of our museums?
That Joyce did triumph is certain. George Anastaplo, in The Artist As Thinker, calls Ulysses a "literary monument of our age" that has replaced Paradise Lost as "the book which all subsequent books in English take for granted." But Anastaplo also sees Joyce as representative of the "more or less steady retreat from the grand public world of Shakespeare into the intense, intimate, the all too often disturbed private world of the modern artist-that private world in which neither old-fashioned nobility nor genuine philosophy nor the deepest piety can be taken seriously."
Joyce's assault on nobility, philosophy, and piety began with his modification of Aquinas's more or less passing remarks on aesthetics in the Summa Theologica. Three things are required for beauty, the Angelic Doctor said, integretas, consonatia, claritas-wholeness, harmony, radiance. Beautiful things, he also said, are those which please when seen: pulchra enim dicunter quae visa placent. In the Portrait, Joyce chooses to translate the phrase as, "that is beautiful the apprehension of which pleases," precisely because visa ("see") translated in the larger sense of apprehension "is clear enough to keep away good and evil which excite desire and loathing."
For Aquinas, of course, beauty radiates from a divine source. But Joyce discounts God-and good and evil-from the notion of beauty. Thus stripped, beauty as mere pleasant perception becomes the sole object of art. Joyce reduces truth to raw candor, crystallized as descriptive accuracy. For Joyce there is nothing of radiance in claritas: He translates it as clarity, which connotes not a radiant, revealing light, but a quality of perceptive precision. Indeed, in the Portrait he substitutes quidditas, whatness, for claritas.
Claritas and beauty-thus conceived-do not move, illuminate, or reveal some other thing; they are simply the most precise possible presentation of a thing in itself, without reference beyond itself. A work of art need do homage to nothing. Reflecting on Joyce's aesthetic, Maurice Beebe wrote that "Joyce exalts the artwork as a world in itself . . . rather than as a fragment or a symbol of a broader, more extensive Unity."
Despite his great technical skill, Joyce's work is stuck on the level of pleasant perception. The result is a peculiar beauty, visible and pleasing only to the erudite, to the scholars and critics who are charmed and amazed by his astonishingly sophisticated technique.
From Joyce's aesthetic, a strange image emerges of the artist as both scientist and god, at once. On one hand, Joyce describes the ultimate data of subjective experience, often in minute detail, but always without judgment, with, instead, the wholly detached eye of a cold empiricist marshalling his facts. Not for nothing did Joyce object that a work of art must not be "solved according to an ethical idea," but "according to indifferent sympathy with certain pathological states. . . ."
On the other hand, Joyce does not, like the scientist, merely discover and record. Instead, he also acts as the master of all that he discovers; he is both Grand Inquisitor and Grand Technician, imposing complex systems of allusion, symbol and style on the indifferently perceived "drama" of life. Upon Ulysses he imposed a variety of forms, here a fugue, there a play or the brash style of journalism. And, of course, he imposes the skeleton of Homer's tale atop his own.
Thus, we may understand Joyce's formulation of his chosen art, drama, as "strife, evolution, movement in whatever way unfolded; it exists, before it takes form, independently; it is conditioned, but not controlled by its scene." Joyce the scientist discovers the uncontrolled actuality of drama; Joyce the god conditions it arbitrarily. In the concept of gnosis, Joyce's functions as scientist and god are met. Possessor of a secret knowledge-the heretofore unknown laws of drama-he manipulates those laws to his own end. Like Marx and Freud, so is Joyce: like them he exercised his will and applied his intellect to observed phenomena in order to declare, ironically, a proof that man has no free will, and no moral capacity worth considering.
In every modern gnostic system the common folk, as opposed to the gnostics themselves, are directed by forces of which they are unconscious. Where the stuff of Marx's gnosis was economic, and Freud's sexual, the stuff of Joyce's secret truth was "drama," in which the moving force may be many things, including delusions, but never ethics, the free choice of good. All earlier-that is, pre-Joycean-forms of art, including Greek and Shakespearean drama, he relegates "to the department of literary curios." Any attempt at ethical drama he variously derides as "funny," "amazing," "piteous," and "absurd."
Joyce displayed a complete contempt for received ideas, all of which he lumped together as "convention." Accordingly, he condemned traditional literature for flourishing in convention and announced that "drama will be for the future at war with convention." Joyce's aesthetic logic leads to an ineluctable conclusion: Drama is at war with "convention"-with moral fiction-because drama is truth and ethics a lie. And ethics are false not only in art but in life because, for Joyce, the new drama is the presentation of life unfiltered; it "arises spontaneously from life and is coeval with it."
Joyce objects to ethics because, while they assume a certain and significant freedom among men equally before their Creator, they also imply necessary restrictions on the good, true, and beautiful paths men may choose. Ethics, therefore, limit the political or poetic tyrant who craves not only a power to rule, but philosophical justification. Any such limitation is, of course, anathema to the fox. Consequently, Joyce attacks not only moral and religious principles, but also any principle that might render life, that is, drama, understandable to laymen. He wrote that "when the mythus [religion] invades the temple (art), the possibilities of drama lessen considerably." In other words, when a truth that discriminates and distinguishes good from bad enters, infinite possibility is reduced.
The fox insists, therefore, on chaotic uncertainty and undeciferable, arbitrary systems, while refusing categorically to recognize any reality higher than his own creation. Only in an arena thus defined can the artist prevail as both scientist and god. Like a false anarchist with concealed ambitions to a throne-like Lenin-he agitates for the collapse of all natural, divine, and conventional institutions, knowing that atop their chaotic rubble he can impose a system of his own. But the system imposed is impenetrable, for the modern artist is the creator of his own reality, understandable, if at all, only to those initiated in the gnosis.
Again, the logic of Joyce's literary gnosticism is inescapable, and Joyce himself draws the appropriate conclusion: "drama is of so unswayed, so unchallengeable a nature that, in its highest forms, it all but transcends criticism." The Joycean form of drama, then, admits not even dissent. How can a scientist, presenting only facts, be questioned-or opposed? How can a god? And though Joyce's statement may seem merely, if titanically, arrogant, it is, in another sense, mundanely true. Free of all received tradition, open to infinite possibility and governed not by a divine or natural truth, but by misconceived actuality and relativism, an artist's work cannot be meaningfully criticized.
In contrast to Joyce's thoughts on the nature of "drama," Tolstoy's are brief and unassuming. For the hedgehog, drama is but a part of storytelling, and storytelling, in turn, is but a part of life. Drama is open and obvious to all-artist and audience. In What Is Art? he synopsized a theatrical performance among a savage tribe of Voguls, contrasting it, favorably, with modern drama. A reindeer-doe and her fawn are pursued by a hunter: Tension and suspense build as he closes on them and draws his bow, but they escape. Again, the hunter stalks and closes, this time wounding the doe, and the drama builds to a climax as the fawn licks its mother's wound and the hunter draws another arrow. . . .
For Tolstoy this is drama enough: An art that critics rarely experience, "the simple familiar feeling, compelling us to joy in another's gladness, to sorrow in another's grief, and to mingle souls together-which is the, very essence of art."
Simply put, for Tolstoy art is the imitation of life. But for Joyce, whose personality is virtually indistinguishable from his work, life and art are coextensive and, therefore, life may as well be the imitation of art.
Only in our twilight era could such an unnatural inversion of the relationship of art and life be not only accepted, but honored. In the dusky light of modernity, the worn, scattered shapes of traditional ethics and virtue are still dimly visible. But this generation has never seen or known them well. We desire them vaguely, nostalgically, for like a landscape at sunset, they are beautiful with the bittersweet sadness of a passing. This twilight, like any other, is a time of uncertainty, of misconception, when the dying light plays magically with distance and form.
In such a time anything is possible, as Joycean critics and scholars have labored mightily to prove. Behold, with astonishment, the critical dissection of the "Anna Livia Plurabelle" segment of Finnegan's Wake, in which Joyce included thinly veiled references to some five hundred rivers of the world, in order, apparently, to enhance the "riverness" of the piece. The vision is compelling: Joyce with atlas in hand for days, weeks, months on end, bastardizing the names of rivers to fit his original, ordinary words in an exercise of exquisitely meaningless allusion. Among the ornaments of such overwrought composition, critics can find anything they please.
Still, all the work of Joyce's critics proves nothing so well as Chesterton's observation that the more an expert looks at a thing, the less he sees of it. Modern critics, whose only guide is technique, have named Joyce not only great, but good. For some of these, the only standard of morality lies in standardlessness, and of this, Joyce, by his own admission, is the epitome. But more enlightening than the critics of relativism are the critics who call Joyce morally great by traditional standards, for they reveal the ultimate, contorted consequences of amoral art. Surely there can be no better proof of the infinite mutability and inherent meaninglessness of a philosophy of art that regards only technique than to see Joyce and Tolstoy lumped together as brothers in the fight for moral fiction. Such critics illustrate our present bondage not only to the aesthetic philosophy of Joyce, but also to the larger modern philosophical movements, of which Joyce's philosophy is a part.
Witness Stanley Sultan, who in 1964 wrote a weighty monograph titled The Argument of Ulysses and dedicated to the proposition that Ulysses is a "literally and explicitly" devout and religious novel, a vast moral fable, advocating God, family, and everything upright. Forty years after publication, Sultan discovered, apparently, the ethical essence in the maze of Ulysses. And, indeed, by modern critical standards, Sultan's means of interpretation are quire impeccable. But because the meaning he assigns to various symbols and allusions have reference only to Ulysses itself, the truth of Sultan's propositions can never be tested. The critic, like the artist, is free to establish his own moral system. The result is an absurd syllogism in which the argument is valid, but unsound. Therefore, if Sultan wishes to see that, when Bloom and Stephen relieve themselves in the garden beneath Molly's window, the movement of a shooting star across the firmament from Vega in the Lyre beyond the Tress of Berenice toward Leo demonstrates Stephen's deliverance from selfishness and Bloom's reaffirmation of wife and family, so be it. One is free, on Joyce's own terms, however, to point out that a shooting star is no star at all, but a bit of randomly floating, burning dust: the false star of a moment. This fact could be employed, quite legitimately, to put a very different interpretation on the heavenly activities above Bloom's urination.
The point is that we cannot, by reference to Ulysses itself, either prove or disprove Sultan's argument. The intentional ambiguity of Joyce's philosophy and technique renders his work susceptible to any possible interpretation.
Even more than Sultan's work, the late John Gardner's On Moral Fiction provides a striking example of our diminished moral faculties. Gardner yearned to see moral fiction restored. Quoting-yes-Leo Tolstoy's What Is Art? Gardner attacks the new criticism, and makes all the right statements about those things Joyce banned from art. And yet, yet . . . Gardner does not even recognize the enemy, for, without explanation, he includes Joyce in the line of great writers of moral fiction.
Gardner was a citizen of the critical world he fought against. He could not escape the grasp of those aesthetic axioms he did not seem to recognize as Joyce's own. Raised in a corrupt regime and therefore corrupted by its-moral ambivalence, Gardner manages to lament his state but understands inadequately what is lamentable. Like an anti-clerical philosophe from the eighteenth century, he denounces "brainless, fat religion," and therefore, like Joyce, he effectively denies the need to come to grips with man's effort to love, understand, and honor God.
Gardner also insists that a novelist, poised over his first draft, must have no preconceived, notion about the course or outcome of his work. He thus accepts, wittingly or not, Joyce's idea that drama must be at war with received ideas. For Gardner, a work undergoes innumerable changes through the process of art, which he regards as a peculiar thought process all its own. Consequently, Gardner argues that the demise of moral fiction results from a "loss of faith in how art works." But, of course, this is wrong. The idea itself reflects the mistaken Joycean assumption that art and life are coeval. There has been a loss of faith, no doubt, but it is a loss of faith in how life works. Faith and ethics arise from life, which art follows and imitates. There never was any such thing as a "faith" in the process of artistic composition. Gardner's assertion that there is or was only reveals his enslavement to Joycean philosophy.
Gardner's urge to restore ethics wavers at the crossroads, and he seems to fear the difficult way to salvation. He is afraid that, if he gives substance to his desire, he will take a misstep and become not moral, but didactic, exposing himself, ironically, to deserved ridicule from the critics he holds in contempt. Having diagnosed the disease, Gardner has not the will to risk the cure. He is content with his sorrow and anger.
But this is precisely the point: We all live after the fox and, to a greater or lesser extent, have abdicated the will to moral action. We are like Gardner, who stands in his twilit doorway, hoping and watching for the return of a lost loved one, but fearing to go and find that one himself. We dare not do right for fear of doing wrong. We are burdened by the weight of a new convention, Joyce's, the convention with but one article: that there shall be no convention.
The anxiety Gardner suffered over the prospect of making moral mistakes is the anxiety Joyce and his followers removed altogether by abolishing the moral will. And this abolition extends beyond art to all of life because if art is the imitation of life, or, even more, if art and life are coeval, then there are no grounds for excluding either the moral or religious yearnings of men from art, except on the assumption that those yearnings are perverse and illegitimate generally.
The twin pillars of modern philosophy, logical positivism and moral relativism, are Joyce's as well. His "scientific" effort to reduce art to the unfiltered regurgitation of actuality is nothing more or less than the application of logical positivism to aesthetic philosophy: It relieves moral anguish and provides, instead, the comforting, false certainty of empiricism. Moral relativism enters when the work of positivism ends by picking up the atomized pieces of mankind and converting moral truth into a system of solipsistic "value" determined by personal whim: each man a god, creating and re-creating truth in the tiny realm of his own psyche. Thus are Joyce's artistic functions as scientist and god joined in a single, consistent philosophy which, by its empiricism, reduces man to dust, but, by its relativism, raises him to imagined godship over his own, and only his own, trivial, dusty concerns. Joyce and his progeny are, therefore, condemned to meaninglessness and exiled to technique.
Caring only for technique, we mistake brilliance for great goodness. Similar mistakes have plagued the last two centuries, and in politics the confusion of greatness and goodness has been especially disastrous. Leo Strauss understood this well and, upon hearing of the death of a great and good statesman, spoke thus to his political science students:
The death of Churchill reminds us of the limitations of our craft, and therewith of our duty. We have no higher duty, and no more pressing duty, than to remind ourselves and our students of political greatness, human greatness, of the peaks of human excellence, for we are supposed to train ourselves and others in seeing things as they are, and this means above all in seeing their greatness and their misery, their excellence and their vileness, their nobility and their triumphs, and therefore never to mistake mediocrity, however brilliant, for true greatness.
The things that James Joyce did must never be mistaken for, or confused with, true greatness and moral character. A world that can confuse them has lost its moral bearings. But lamentation alone will not restore our sense, or the habit of virtue. We must not only ask the moral questions, but answer them, daring the didactic, brave enough and sure enough to recognize mediocrity in the heart of brilliance.