Posted: July 16, 2014
eagan conservatives may have been right to view the Supreme Court nomination of Anthony Kennedy-whose eventual performance before its judiciary committee gave the Senate no reason to reject him-as a capitulation to the organized interest groups and Senate liberals who spiked Robert Bork. But they would be wrong to direct their energies to refighting that same battle. The ground was ill-chosen, for it will be nigh impossible for them to follow the liberals' lead in transforming American public policy largely through the courts. And their arms-which is to say their arguments-proved woefully inadequate, for many of them have yet truly to understand the constitutional crisis before us.
It would be a mistake for American conservatives to rely heavily on the performance of judges-or the judiciary-to achieve victory in the policy arena. The contemporary role of the Court becomes intelligible only upon recognition of the fact that the judiciary has become an indispensable tool in the growth and legitimation of the administrative state. But the administrative state was a creature of the Democratic Party. Its evolution required an activist judiciary in alliance with a liberal and apparently passive legislative body. It was the wholesale delegation of authority to the bureaucracy by its architect, the congressional majority, which in effect forced the judiciary to enter the policy-making arena. (Of course, judges have not been immune to the temptation of reveling in their newly gained power and defending it as heaven-sent.)
It will be much more difficult for Republicans to utilize the least democratic branch for its political purposes precisely for this reason: the policy-making power of the courts is predicated on the assumption that the judiciary will serve as the linchpin of the bureaucratic state. Proponents of this state recognize no principled limitation upon the power of government; in practice, they insist upon limiting the power of the majority-now especially the national majority represented by the president-while at the same time denying any limitation upon the power of the nonelected minority institution, the judiciary. But constitutional government presupposes a limitation upon the power of government in all its parts.
The constitutional separation of powers reflects the primary necessity of preventing the legislative branch from undermining the Constitution, due to its supremacy as the ongoing lawmaking body. Judicial review of legislation inhibits that supremacy and thus ensures the supremacy of the constitutional order, assuming that the Court will defend the Constitution in its judicial role. What we have seen in recent years, however, is the participation of the two political branches in enlarging the Court's role. They have deferred to the judiciary in nearly all matters, political as well as judicial, and have failed to insist that it limit its power to its constitutional role of judging as opposed to making law. Thereby the Court has been allowed to undermine not only the separation of powers, but the Constitution itself, by judicial interpretation. Judicial review has given
way to judicial supremacy.
This change is widely remarked upon; not so the specific and revolutionary purpose for which it was accomplished. In recent years, the Democratic Party in Congress has utilized the judiciary to overcome the limitations placed upon the power of all government. For by aggrandizing the judiciary while at the same time ignoring its constitutional role, the legislative branch gained legitimacy for the bureaucratic state. The court, freed from constitutional restraints, legitimized the prevailing legislative-bureaucratic relationship, which liberated Congress from the necessity of making general laws. And as Congress's function of overseeing the bureaus eclipsed that of deliberating and making laws, its power moved from the body as a whole to committees, subcommittees, and the offices and staffs of individual members who control them.
The situation today is this: Congress controls the administrative details of politics through the bureaucracy it created, and the judiciary reigns supreme in the realm of politics or regarding general policy matters. In terms of constitutional government, this arrangement has prevented the true sovereign-the American people-from exercising its decisive political role.
The greatest practical task faced by contemporary conservatism, therefore, is to sever the link between the judiciary and the administrative state. But this should not nor can it be done by means of the judiciary. A result-oriented Court, whether it favors liberal or conservative results, represents-at the most fundamental level-a denial of the consent of the governed. The conservative agenda, then, requires a return to a proper working of the constitutional separation of powers. And judges themselves are unlikely to relinquish power under prevailing conditions; indeed, it may be nearly impossible for them to do so. Any fundamental change must be made rather in the political branches of government.
In the latter regard, it is important to realize that Democrats are not responsible for the contemporary court majority. Republican presidents have appointed seven of the last nine justices who have served most recently on the court. Those justices have responded to the political environment of the administrative state-a product forged by the Democratic majority in the 1964 election-and no subsequent Republican president has been able to resist the most powerful trends of subsequent Democratic majorities in Congress. Thus the most important fact of recent American politics is that the Democrats have controlled the legislative branch for nearly all of the past six decades. While it is true that they have been unable to dominate presidential politics for much of the same period, presidential leadership is not required for the successful operation of the administrative state as outlined above. In fact, strong presidential leadership becomes a positive annoyance to that operation.
Democrats have maintained firm control of the House of Representatives since the 1950s, and in 1986 their brief tenure as a minority in the Senate became an aberrent historical footnote. Most importantly, the Democrats in Congress have been able to control the Domestic policy agenda by strategic control of the bureaucracy and skillful manipulation of the judiciary. The reason the latter is so crucial has been the failure of the political branches of government and of the political parties to create a partisan consensus on issues of great political or moral significance. The Court has stepped in to settle those divisive issues- to the satisfaction of very few, one might add. Thus from the perspective of congressional Democrats, control of an ideological Supreme Court majority has precluded the necessity of having to win the presidency in order to shape policy on even the most controversial issues.
A change in the Court majority of the sort Reagan conservatives desire, however, will not result in a similar kind of conservative alliance with the Court. At best, a Court majority animated by a philosophy of judicial restraint could do no more than prevent the expansion of the administrative state; it would be likely only to be able to maintain the status quo. For the Republicans, ultimately, the battle for the future will be the battle to shape public opinion, and victory will hinge upon their ability to ratify such public opinion as they have shaped in partisan political elections. This victory would and could only be legitimized by a democratic majority animated by a consensus on fundamental principles.
The massive mobilization of organized groups against the Bork confirmation made clear that what conservatives are up against today is the most widely accepted public philosophy among American elites-interest-group liberalism or pluralism. At issue was the question of whether the rights of Americans ought to be protected as members of the various groups or classes which make up the nation, or whether rights adhere to individuals and ought to be protected as such by the courts. At a more fundamental level, this involves the necessity of determining whether rights are derived from historical circumstance or whether they exist by nature. At stake is the question of who will determine, in an authoritative way, the meaning, or the philosophy, of the Constitution.
Those opposed to Bork were animated by a philosophy of history and an evolutionary theory of law. In their view, the Constitution is a "living document" which must incorporate the changing ideas and mores of each generation. In practice, this means that contemporary elites-or leading intellectuals-will determine the meaning of the Constitution, because they will articulate the leading ideas-or ideology-of each period. The contemporary ideology most acceptable to our elites today, however, rests upon a radical interpretation of the meaning of equality. Indeed, the understanding of equality which animates leading contemporary intellectuals is not different from that of the "Economists" described by Tocqueville in The Old Regime and the French Revolution. Tocqueville noted of these 18th-century intellectuals that
their writings had the democratic-revolutionary tenor characteristic of so much modern thought. For they attacked not only specific forms of privilege but any kind of diversity whatsoever; to their thinking all men should be equal even if equality spelled servitude, and every obstacle to the achievement of this end should be done away with immediately. For contractual engagements they had no respect, and no concern for private rights.
Similarly, in the view of contemporary intellectuals, it has become necessary to abandon the principle of political equality, not to mention individual liberty, in order to achieve what is for them the only legitimate equality-social and economic equality, equality of outcome or what might be called communal equality.
Originally, the American regime was committed to the protection of the equal political rights of all individuals, based on the assumption that all men were created equal. As a consequence, government encouraged the greatest possible political, economic, and religious liberty, as well as social diversity. Although government was to protect rights, it was not to take sides regarding interests, whether of individuals or of groups within society. The significant exception to this rule, one which has plagued America throughout its history, was the protection of the slaveholders' property interest in fellow human beings. And it is as a consequence of the fact that this was incompatible with the principle of human equality-and with those principles of constitutional government that flow from it-that the Constitution cannot be defended in terms of its language alone, or as simply a legal document. Rather such a defense must be grounded in the principles underlying constitutionalism itself, which are the essential objects of the enmity revealed by those who attacked Mr. Bork.
Liberal governments, in their origins, were characterized by a fundamental distinction between the state and society, or the public and the private sphere. Because the state or government rests on the necessity of using force, and society on voluntary actions or private contracts, the sphere of government or state activity' was limited. But this protection of the private sphere necessarily led to economic and social heterogeneity in society. Those who have come to posit communal equality as the only legitimate form, therefore, have had theoretically to undermine the distinction between the public and the private, and practically to place their confidence in the state as it operates through the bureaucracy and the courts. Subsequently, it came to be believed that all rights are a product of government or the courts. Even the right of privacy, which was originally thought to be secured by limiting the power of government in the private sphere, is now said to exist only when it is enforced by government. What this means as a practical matter is that government's powers must be essentially unlimited, in the private as well as the public sphere. Moreover, "communalists" hold that it must use its powers to benefit those social groups, or individuals, who are most disadvantaged. These must be given special status within the law and protected by the public bureaucracies in order to remedy advantages achieved by others, politically or naturally. In short, only a bureaucratic state can ensure the achievement of equality as they define it.
Ronald Dworkin has designated homosexuals, along with any group or "lifestyle" which suffers opprobrium at the hands of society or of a majority, a "moral minority," and as such entitled to the greatest protection by government and the courts. In opposing Bork, he cited "the idea of constitutional integrity-that the freedom and dignity recognized for one set of Americans, in one set of decisions, must be available to all other groups with equal moral claim." He would not suggest, however, that all groups have "equal moral claims." It is unlikely, for instance, that the Ku Klux Klan is of equal moral worth in his eyes with homosexuals, AIDS victims or the homeless. But there is no non-arbitrary way to determine the moral worth of groups. It is wholly dependent upon their status within the ideology of the most authoritative elites. There is no reason, in principle, why the most powerful groups, as opposed to the most oppressed, ought not rule in their own interest if they can claim historical or scientific legitimacy. In principle, then, the Dworkin view is not unlike that which animated Nazi Germany or which animates communist regimes today.
When the rights of individuals are not understood as rooted in nature, it is merely the arbitrary will of the most powerful group-ideologically or politically-which determines the rights or moral worth of groups in society. And by extension, the rights of individuals are only as secure as the status of the group to which they belong. This case demands the attention of the American people. But while Bork and most of his supporters rallied around the banner of the original intention of the Constitution, their defense of that intention was sapped of its rhetorical and political force because it was merely a defense of the Constitution's language, not its principles.
Bork has stated: "The effort to create individual rights out of a general, abstract, moral philosophy is doomed to failure from the beginning, because I don't think there is any version of moral philosophy that can claim to be absolutely superior to all others." But the framers believed, without doubt, that the principles of civil and religious liberty, derived from the equality of all men, comprised a moral philosophy that was so superior. Moreover, they thought their arguments for the superiority of constitutionalism, or moderate and limited government, over arguments for government based on force, superstition, religious belief, or the arbitrary will of any individual or group or class of men, could be justified in terms of nature and reason, and were not dependent upon mere preferences.
By interpreting and explicating an understanding of the Constitution as essentially "positive law," Bork was unable to make a principled defense of the constitutional order-against those who oppose him only because they oppose it-as fundamentally just. Furthermore, he undermined the most powerful argument in defense of individual rights: the view that those rights depend upon no government, nor upon positive law, for their legitimacy, but are rooted in the laws of nature. The question then arises: In the absence of reasonable argument, or of any claim to justice, why ought it be preferable for the American people to be ruled by a founding elite, or even a founding majority, rather than a contemporary elite or a contemporary majority?
Bork's supporters defended him as an advocate of judicial restraint; and as a policy matter, Bork is surely right in his opinion that the founders intended for the majority to prevail in policy matters. Practically speaking, this means that the legislative branch rather than judges ought to be predominant in the political arena. When it comes to rights, however, as opposed to policy, the Constitution itself is a denial of the view that the legitimacy of law derives from the fact that it reflects the majority's will. The whole constitutional order, with its separation of powers, is an attempt to prevent domination by the unreasonable will of the legislature, as well as of the majority itself. Jefferson made clear what this meant in his First Inaugural:
All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
Bork's critics understood that the majority is not always mindful of the rights of individuals or minorities, and they look to the judiciary to protect the interests of groups, including minorities. Bork should have insisted that courts must protect the rights, not the interests, of minorities and individuals; that it is only because the Court is impartial as regards interests, that an enlightened people are willing to entrust their rights to an independent, non-elected judiciary.
Bork needlessly allowed his critics the moral high ground and, on top of that, failed to show that their notion of right or justice is little more than the prevailing ideology of contemporary elites. But his failure provides a lesson that modern American conservatism itself, and not just Mr. Bork, must draw upon in future: One need not deny the existence of justice, moral principles and natural rights merely because one's opponents cloak misguided arguments in terms of justice, morality and minority rights. Indeed, doing so is a sure ticket to defeat in our nation. Rather it is necessary to show that such arguments as were leveled against Bork-arguments of which we have not heard the last by any means-have no basis in reason or nature, and thus no legitimate claim to being just; that they are rooted in passion-or compassion-and will, rather than reason, and therefore lack the essential element of constitutionalism as our founders understood and defended it.
The Reagan administration has not tried to hide the fact that it had hoped to leave its longest-lasting legacy through the process of judicial appointments. This is little more than a tacit admission that it has been unable to change the political landscape through the electoral process. Its failure to do so-and its failure in a sense even to attempt to do so, which has given some the impression that the Republican Party is grown accustomed to, if not fond of its minority status-has in turn proved extremely costly in the waning years of the Reagan presidency. The President's inability to get confirmation of his leading nominees to the Supreme Court is but one case in point.
In terms of ensuring an enduring legacy, Reagan would have done better to follow the example of Franklin Roosevelt, who, following the election of 1932, created an electoral coalition which proved to be irresistible. A recalcitrant Court bucked the Roosevelt tide for a short time after his extremely partisan reelection in 1936. But this presented only a temporary obstacle to the long-term goals of the Roosevelt Administration, which set the agenda of American politics for the next half century. Moreover, every Republican president since has had to contend with that legacy in the form of Democratic Congresses-and particularly Democratic Houses of Representatives. Viewed in this light, Reagan's electoral victory in 1980 was but half a victory, and shortlived to boot. Reagan was able to help Republicans gain control of the Senate but failed to dislodge the Democrats in the House. And after the 1982 midterm election-and to a considerable degree even before it-he and his administration backed away from the partisanship, not to mention the animating principles, which had led to 1980's success.
Reagan strategists ran the 1984 election as a rerun of 1972. The goal was to win a huge electoral victory for the incumbent in the White House, at the expense of a partisan battle designed to continue the electoral realignment barely begun in 1980. Such an election would have resulted in a necessary polarization of the country, much the way F.D.R. divided the electorate in 1936. In that election, Roosevelt went so far as to brand the opponents of the Democratic Party as enemies of democracy and of the people themselves. He wanted his party to win all branches of government at every level, and he wanted the great majority of voters to abandon their allegiance to the opposition party.
In 1984, on the other hand, the Reagan campaign invited Democrats to remain Democrats while asking them to join in voting for the President. Unlike the partisan appeal of F.D.R., Reagan did not ask voters to join his party because it had the best principles, or insist that voters abandon their allegiance to the disloyal opposition. Thus the electoral debacle of 1986 should have surprised no one; likewise the Iran-Contra controversy and all that it entails, and the fate of the Bork nomination.
There is an aura of tragedy about contemporary American politics. The Democratic Party can no longer openly win a national majority in order legitimately to pursue its policies in the partisan political arena. Rather, it has succeeded in nationalizing what are essentially local concerns, creating in the process a massive executive apparatus to administer those concerns. As a consequence, the interests of the legislature and those of the executive have diverged, regardless of party. Presidents are elected, and are expected to govern, on the basis of an appeal to general or national issues. Members of Congress are elected on their perceived capacity to satisfy local and particular interests. Furthermore, incumbents of either party in the legislature are able to win reelection by appealing to local or organized constituencies on particular issues, now administered at the national level. At the same time, members have become skilled at obscuring controversial or partisan stands which are of a general character and of national importance-e.g., their stands on Central American communism. As a result, Congress has the ability to prevent the President from governing on the basis of an appeal to general or national issues. Thus the national majority has been rendered politically impotent and the Court has stepped in to fill the vacuum with the blessing of Congress.
Recent Republican presidents have been successful only when they have been able to mobilize national sentiment sufficiently to force members of Congress to refrain from bucking the will of the national majority. Only in this circumstance is it politically difficult for members of Congress to ignore the president in order to satisfy organized or local constituencies. But of course it is difficult to mobilize national sentiment, and it can be done only on a few occasions involving select issues. Ordinarily, the organized interests and the issue-networks in alliance with the bureaucracy, the legislature, and the courts, dominate in the normal affairs of government.
It is clear, after several decades of experience, that control of the presidency has not resulted in the conservative transformation of American politics. Nor will such change occur through the judiciary. In the final analysis, it requires the transformation of the legislature. There is little doubt, however, that the presidential office remains the critical catalyst which can create the kind of partisan consensus-animated by the original principles of the Republican Party and of America-which is necessary to bring about such an electoral realignment and to save the Constitution.