The Court and the Candidates
The Court and the Candidates
by George W. Liebmann
How did we wind up with two presidential candidates who evoke widespread if not universal contempt?
A surprising number of the root causes can be laid at the door of the Supreme Court..
The crux of its influence on American culture is found in the so-called ‘mystery passage’ of the opinion of Justice Anthony Kennedy and two other justices in the Casey abortion case, celebrating as a source of law “The right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This rhetoric, seemingly out of Hugh Hefner by Ayn Rand, is not merely a repudiation of enforced sectarianism but of the influence of moral and religious principles on legislation. Its celebration of moral laissez faire is a far cry from the tolerance of opposing and contending views upheld by Justice Holmes and Judge Learned Hand, as well as their tolerant successors, Justices Frankfurter and Jackson: “A Constitution is not intended to embody a particular economic theory, whether of the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally different views,” Justice Kennedy’s constitution is made only for people of his own view.
The sources of law in a democracy, Justice Holmes proclaimed on the first page of his book on The Common Law are multifarious: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men shall be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
The opinion in Casey “call[ed] the contending sides of a national controversy to end their national division by accepting a mandate”, language strikingly similar to, and as effectual as, that in the concurring opinion of Justice Wayne in the Dred Scott case. The Constitution was thus viewed as a protection for political speech and political controversy but as an instrument intended to extinguish both political controversy and political compromise. The beauty of majority rule, as Learned Hand pointed out, is that it allows a minority to live to fight another day in a nation with frequent elections. Holmes’ exaltation of it was not an exaltation of force, as some have claimed, but an exaltation of politics as a substitute for the bloodshed that Holmes saw in the Civil War, as the essays on Holmes by Edmund Wilson and Louis Menand have shown. The court’s authoritarianism increasingly renders elections irrelevant,; as Tocqueville observed in his Ancien Regime, this invariably leads to declining political participation.
Equality is the touchstone of the new jurisprudence, even though ‘equal protection’ as used in the Fourteenth Amendment had to do with access to courts. It was invoked in the reapportionment decisions to destroy localities as political communities, substituting partisan gerrymandering as predicted by Justices Frankfurter and Harlan. It has been invoked to de-legitimize any recognition of different sex roles, and many sorts of earned distinctions. Although its votaries celebrate ‘diversity’, what they really demand is uniformity, enforced by a federal nomenklatura. Each institution is to be a microcosm of society. “The herd is regaining its ancient and evil primacy,” Learned Hand wrote at the height of the totalitarian era. “Civilization is being reversed, for it consisted of exactly the opposite process of individualization.”
Attempts to compromise moral and social issues thus fall beneath the judicial sword. But the old order does not die as rapidly as some would like. As George Kennan noted “many men require a spiritual as well as a profane framework of law, a moral order founded on an appreciation of the dilemnas of birth and death. For many people, it is always better that there should be some moral law, even an imperfect one or an entirely arbitrary one, than that there should be none, for the human being who recognizes no moral restrictions and has no sense of humility is worse than the foulest and cruelest beast.”
It is not only government action founded on voters’ moral preferences that is proscribed but under the rubric of conditional spending, ‘hostile environment’, ‘safe spaces’ and anti-discrimination laws, private manners as well. The heroics deemed necessary to end apartheid of a disenfranchised minority against which Robert Bork famously protested are now treated as normal techniques consistent with liberal democracy.
The offenses against civil society and mediating institutions come from the right as well as the left; judicial activism is a game any number can play. Its weapons have been statutory misconstruction rather than constitutional invention, curbing antitrust, labor, and state financial legislation, the last in a decision by Justice Brennan invoking a Civil War era statute; though the First Amendment has been mis-employed to curb commercial speech and political spending regulations, not least by the judicial exemption on behalf of self-financed megalomaniacs that has benefitted Mr. Trump, and the Second Amendment, a federalism measure, has been applied to restrain the States it was designed to protect.
As the present writer said fifteen years ago “The failure of Marxism has inspired no replacement save for ‘an unheroic materialism,’ or, more accurately, consumerism. This will not satisfy people in hard times; it certainly will not satisfy the young.. . One finds on the left only a Marxist residue, a quest for the one true way, imposed by national government; while on the right, interest centers on privatization, not devolution, and a revived and rather extreme Manchester liberalism.”
The resultant concentrations of power, governmental and private, have been engines of corruption. Even the external defenses of the political community were impaired by Justice Brennan’s glib assumption in Plyler v. Doe that “few, if any, illegal immigrants come to this country in order to avail themselves of a free education.” Half a century ago, Charles De Gaulle wrote that the American decentralization of control over moral and social issues made possible the survival of the American separation of powers, since federal politics had to do only with foreign affairs and the economy. “It has only two parties, which are opposed on none of the fundamental issues–nationhood, moral law, institutions, defense, freedom, ownership.” “But where would it lead France, a country the demands of whose unity coupled with the perpetual threats from outside have induced to centralize its administration to the utmost, thus making it ipso facto the target of every grievance?.[It] would lead to intransigence on both sides, parliament refusing to vote the laws and budgets for any recalcitrant government, and the latter, in consequence, overstepping the bounds of legality for lack of any recognized outlet to their conflicts through dissolution on the one hand or a vote of censure on the other. . . The inevitable result would be either the submission of the President to the demands of the deputies or else a pronounciamento.” This syndrome is seen in the Obama administration’s efforts to decide by decree issues such as drug policy, immigration policy, environment and trade policy, discipline on college campuses and even local control over policing, the bedrock of American civil liberty..
The horizontal separation celebrated by De Gaulle has since been destroyed by the Supreme Court and under either major party candidate, neither person rooted in or respectful of local institutions or the laws, the pronounciamento is near.
George W. Liebmann, a Baltimore lawyer, is the author of a number of historical works and works on local government, including Neighborhood Futures (Transaction Books) and The Fall of the House of Speyer (I.B. Tauris) reviewed in the Wall Street Journal on January 26.