The Tempting of America Read online

  The process by which this is accomplished may vary from field to field, from universities to the media to courts. In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

  The American people are tempted as well. Many of the results seem good, and they are told that the choice is between a cold, impersonal logic, on the one hand, and, on the other, morality and compassion. This has always been the song of the tempters, and now it is heard incessantly from those who would politicize the courts and the Constitution, as a necessary stage in the politicization of the culture at large.

  The democratic integrity of law, however, depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.

  This strategy, however, contains the seeds of its own destruction. Since the politicization of the law has, for half a century, moved results steadily to the left, a very large number of Americans do not like those outcomes. Increasingly, they are not deceived by the claim that those results are compelled by the actual Constitution. This perception delegitimizes the law in their eyes. There are signs that law may be at a tipping stage in the public perception of its legitimacy. Americans increasingly view the courts, and particularly the Supreme Court, as political rather than legal institutions. Perhaps a lesson may be learned from another great institution: the press. The political coloration of news reporting is easier for the public to see than is that of judicial decisionmaking, and, as the press has in fact become more political, it has lost legitimacy with large sections of that public. Something of the same thing may be happening to law, more slowly but perhaps as inexorably. Conservatives, who now, by and large, want neutral judges, may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution.

  The clash over my nomination was simply one battle in this long-running war for control of our legal culture. There may be legitimate differences about that nomination, but, in the larger war for control of the law, there are only two sides. Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win. Until recently, the American people were largely unaware of the struggle for dominance in law, because it was waged, in explicit form, only in the law schools. Now it is coming into the open.

  In the clash of law and politics, the integrity of the law has already been seriously undermined and the quality of its future remains very much in doubt. The forces that would break law to a tame instrument of a particular political thrust are past midway in a long march through our institutions. They have overrun a number of law schools, including a large majority of America’s most prestigious, where the lawyers and judges of the future are being trained. They have an increasing voice in our politics and in Congress. But the focus of the struggle, the commanding height sought to be taken, as indeed it partially has been, is control of the courts and the Constitution. The Constitution, or the law we call “constitutional”—they are by no means identical—is the highest prize, and control of the selection of judges is the last step on the path to that prize. Why? Because the Constitution is the trump card in American politics, and judges decide what the Constitution means. When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue the democratic process is at an end. That is why we witnessed the first all-out national political campaign with respect to a judicial nominee in our country’s history.

  My chambers, as a federal court of appeals judge on the District of Columbia Circuit, were on the third floor of the United States Courthouse and overlooked Constitution Avenue. Twice a year, along with my clerks and secretaries, I watched massive marches come down that wide street, one by anti-abortionists and one by pro-abortionists. The reason for those parades was, of course, Roe v. Wade,1 the Supreme Court’s 1973 decision making abortion a matter of constitutional right, thus largely removing the issue from state legislatures, where it had rested for all of our history. Each group first gathers to demonstrate outside the White House, then forms, carrying placards and sometimes chanting, to begin the lengthy walk down Pennsylvania Avenue to Constitution Avenue and on to Capitol Hill. There the demonstrators march past the Houses of Congress with hardly a glance and go straight to the Supreme Court building to make their moral sentiments known where they perceive those sentiments to be relevant. The demonstrators on both sides believe the issue to be moral, not legal. So far as they are concerned, however, the primary political branch of government, to which they must address their petitions, is the Supreme Court. There is something very disturbing about those marches, for, if the marchers correctly perceive the reality, and I think it undeniable that they do, a major heresy has entered the American constitutional system.

  “Heresy,” Hilaire Belloc reminds us, “is the dislocation of some complete and self-supporting scheme by the introduction of a novel denial of some essential part therein. We mean by ‘a complete and self-supporting scheme’ any system of affirmation in physics or mathematics or philosophy or what-not, the various parts of which are coherent and sustain each other.”2 The American design of a constitutional Republic is such a “complete and self-supporting scheme.” The heresy that dislocates it is the introduction of the denial that judges are bound by law.

  The foundation of American freedoms is in the structure of our Republic. The major features of that structure are the separation of the powers of the national government and the limitation of national power to preserve a large degree of autonomy in the states. Both are mandated by the Constitution. These dispersions of power, viewed historically, have guaranteed our liberties as much as, perhaps more than, the Bill of Rights itself. The phrase “separation of powers,” briefly put, means that Congress has “All legislative Powers,” as those are defined in article I of the Constitution, while the President possesses “The executive Power,” which is outlined in article II, and article III sets forth the elements of “The judicial Power.” Those powers are very different in nature, as those who adopted the Constitution recognized and intended. When powers are shared, as they sometimes are by the President and Congress, the Constitution is usually explicit on the subject. Thus, the Constitution specifies that the President may veto a bill enacted by Congress and that Congress may override the veto by a two-thirds vote of each House. Similarly, the President may negotiate treaties, but they must be ratified by a two-thirds vote of the Senate. There is no faintest hint in the Constitution, however, that the judiciary shares any of the legislative or executive power. The intended function of the federal courts is to apply the law as it comes to them from the hands of others. The judiciary’s great office is to preserve the constitutional design. It does this not only by confining Congress and the President to the powers granted them by the Constitution and seeing that the powers granted are not used to invade the freedoms guaranteed by the Bill of Rights, but also, and equally important, by ensuring that the democratic authority of the pe
ople is maintained in the full scope given by the Constitution.

  The Constitution preserves our liberties by providing that all of those given the authority to make policy are directly accountable to the people through regular elections. Federal judges, alone among our public officials, are given life tenure precisely so that they will not be accountable to the people. If it were otherwise, if judges were accountable, the people could, when the mood seized them, alter the separation of powers, do away with representative government, or deny basic freedoms to those out of popular favor. But if judges are, as they must be to perform their vital role, unelected, unaccountable, and unrepresentative, who is to protect us from the power of judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roofs, and beams ; judges preserve the major architectural features, adding only filigree.

  What does it mean to say that a judge is bound by law? It means that he is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment. The lay reader may wonder at the emphasis put upon this apparently simple point. Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively, and eruditely denied by constitutional sophisticates, particularly those who teach the subject in the law schools.

  In these matters, common sense is sound. As Joseph Story, who was both an Associate Justice of the Supreme Court and a professor of law at Harvard, put it in his famed Commentaries on the Constitution of the United States,

  The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution. I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers by ingenious subtleties and learned doubts…. Upon subjects of government it has always appeared to me, that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation.3

  Story might have been addressing today’s constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. There is a remarkable consistency about these theorists. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the actual Constitution or the legislative opinion of the American public. That, surely, is the point of their efforts.

  What the theorists want are courts that make major policy, courts that build a new structure rather than maintain the original. Story knew better. When he came to the role of the courts under the Constitution, he said: “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.”4 Only by following that rule can our unelected guardians save us from themselves. Only in that way can the foundation of our freedoms, the separation of powers, be kept intact. Only so can judicial supremacy be democratically legitimate.

  There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”5 I meant something like that when I dissented from a decision that seemed to proceed from sympathy rather than law: “[W]e administer justice according to law. Justice in a larger sense, justice according to morality, is for Congress and the President to administer, if they see fit, through the creation of new law.”6

  That is the American orthodoxy. The heresy, which dislocates the constitutional system, is that the ratifiers’ original understanding of what the Constitution means is no longer of controlling, or perhaps of any, importance. A variety of reasons are given for this extraordinary proposition, and these will be examined later. The result is a belief, widely held and propagated in the law schools and even by some Justices of the Supreme Court, that judges may create new principles or destroy old ones, thus altering the principles actually to be found in the Constitution. Courts then not only share the legislative power of Congress and the state legislatures, in violation both of the separation of powers and of federalism, but assume a legislative power that is actually superior to that of any legislature. The innovations are announced in the name of the Constitution—though they have little or nothing to do with it—and are therefore intended to be, and are accepted as, final. Courts have behaved in this way on occasion throughout our history, but never so often as in the modern era; what is more ominous, never before has such behavior been so popular in the law schools, in the press, and in the opinions of elite groups generally. Heresy sometimes becomes so pervasive that it becomes the new orthodoxy.

  The heresy described is not peculiar to any political outlook. When it has suited their purpose, conservatives as well as liberals have surrendered to its temptation. Given the chance, no doubt many conservatives would be delighted to succumb again. If I address the failings of liberals more than those of conservatives, it is only because liberalism or ultraliberalism is currently in the ascendancy in constitutional theory and practice.

  The orthodoxy of original understanding, and the political neutrality of judging it requires, are anathema to a liberal culture that for fifty years has won a succession of political victories from the courts and that hopes for more political victories in the future. The representatives of that culture hate the American orthodoxy because they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be reelected, will enact. That is why these partisans want judges who will win their victories for them by altering the Constitution.

  Americans, who know a great deal about presidents and something about Congress, are generally not well-informed about the third branch of government. They react, often in anger, to particular decisions but tend to regard them as aberrational rather than systemic failures. But the heresy of political judging is systemic. A great many judges subscribe to it, a large number of left-wing activist groups promote it, many senators insist upon it, and in the legal academy this heresy is dominant. The orthodoxy of original understanding is regarded as passé, and signs that it is stirring and may achieve an intellectual revival are viewed with alarm as a reactionary threat. The reader will, I think, be amazed at how political, how simultaneously sophisticated and anti-intellectual, is much of what passes for constitutional scholarship today. It is not, in truth, scholarship; it is, as one of its leading practitioners candidly states, the advocacy of political results addressed to courts. That is not what most people mean by “law.” But that bothers the academicians not a bit. A few years ago I was invited to a small seminar of professors of constitutional law. During the discussion I argued that, the Constitution being law, there were some results courts could not legitimately achieve: rules cover some things and not others. A well-known Harvard law professor turned to me with some exasperation and said, “Your notion that the Constitution is in some sense law must rest upon an obscure philosophic principle with which I am unfamiliar.” That attitude is common among our constitutional philosophers. It is fair to say, as Gary McDowell has, that in the law schools, “The question today is
not so much how to read the Constitution as whether to read the Constitution.”7

  Those who now dominate public discourse on these matters recognize that, if the Constitution is law, departures from the principles the ratifiers understood themselves to be enacting are illegitimate. Yet such departures are essential if the results desired by the liberal culture are to be achieved through the courts. It follows that the Constitution cannot be law. Thus, the morality and politics of the intellectual or knowledge class, a class that extends well beyond the universities, can be made into constitutional law. The class I describe is not necessarily composed of people who are good at intellectual work. They are defined as a class because they work, however adroitly or maladroitly, with words and ideas. For reasons that will be discussed, they tend to have values antagonistic to a traditional, bourgeois society. It is not too much to say that these people see the Constitution as a weapon in a class struggle about social and political values.

  Judges are by definition members of the intellectual class and, in addition, for professional and personal reasons, tend to be influenced by the culture of the law schools. Like most people, judges tend to accept the assumptions of the culture that surrounds them, often without fully understanding the foundations of those assumptions or their implications. If they can be persuaded to abandon the idea of original understanding, they are quite likely to frame constitutional rules that reflect the assumptions of modern liberal culture.