2.4 - macedo, stephen - the new right and constitutional self-government in america (en)

7/30/2019 2.4 - Macedo, Stephen - The New Right and Constitutional Self-Government in America (en)

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The New Right and Constitutional Self-Government in America

The New Right and Constitutional Self-Government in America

by Stephen Macedo

Source:

PRAXIS International (PRAXIS International), issue: 2 / 1988, pages: 171-182, on www.ceeol.com.
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~ l t ~ D I 1 L e n MacedoThe nomination of Judge Robert Bark to the United States Supreme Courtprovided some much-needed relief from the tedium and platitude of the Constitu

tion's bicentennial celebrations. But the Bork hearings were only the most publicand visible manifestation of a scholarly and political debate that has been ragingin America for some time, and which shows no sign of abating. l What may seema sterile contest over slogans like "judicial activism" and "judicial restraint,"or worse, "strict" vs. "loose" constructionism touches, in fact, on issues thatlie at the core of liberal constitutionalism. At stake are the content and breadthof basic individual rights, and the extent of the power of an unelected judiciary.But at an even deeper level, as I shall try to explain, the issue between the AmericanNew Right and its opponents concerns the public role of reasonableness in a systemof constitutional self-government. Judicial review is worth defending, I shall argue,because that institution helps elevate self-government by provoking principledpolitical debates about our basic public morality.By the jurisprudence of the New Right I mean the legal ideas that have cometo be associated with the Reagan Administration. Even if Judge Bork had not beennominated to the Supreme Court, no discussion New Right thinking could neglecthis writings and speeches: for there we find the most uninhibited expression ofthe basic constitutional themes stressed by this Administration generally, as wellas prominent New Right figures like Chief Justice William Rehnquist, Attorney

General Edwin Meese, Assistant Attorney General William Bradford Reynolds,as well as various academics and former academics like Raoul Berger, Lino Graglia,and Gary McDowell. 2 The ideas of these figures are worth taking seriouslybecause the New Right's program informs a movement in America nearly asimportant intellectually as it is politically.I will begin by explaining what the jurisprudence of the New Right amountsto, and what its problems are. I will conclude by offering remarks that point inthe direction of a better view, which I call principled judicial activism.1. The Resort to Original IntentionsAny discussion of the Reagan administration's judicial philosophy (at least aspertains to the Constitution and the Supreme Court, which will be my focus) mustbegin with the resort to the intentions of the framers, or original intent. As AttorneyGeneral Meese put it in his widely noted Bar Association Address:It has been and will continue to be the policy of the administration to press for aJurisprudence ofOriginal Intention. In the cases we file and those we join as amicus,

Praxis International 8:2 July 1988 02060-8448 $2.00


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172 Praxis Internationalwe will endeavor to resurrect the original meaning of constitutional provisions andstatutes as the only reliable guide for judgment. 3

Or as Judge Bark has put it: "The Framers' intentions with respect to freedomsare the sole legitimate premise from which constitutional analysis may proceed."4When interpreting individual rights, says Bark, "the judge must stick close to thetext and history." 5At first glance, the resort to history seems unsurprising. The American Constitution, after all, is not easy to interpret. Even where it appears to speak plainly(consider the First Amendment: "Congress shall make no law . . . abridging freedomof speech, or of the press") the Constitution raises vexing interpretive problems(what forms of expression does "speech" include? words that libel or offend?advertising? obscenity? exotic dancing?) In other places, the Constitution speaksin what can only be regarded as majestic generalities. Witness the FourteenthAmendment:No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person oflife, liberty or property, without due process of law; nor deny to any person withinits jurisdiction the equal protection of the laws.

Deciding what these important phrases require is no easy task. New Right scholarsdirect us back to the intentions of those who framed the amendment: segregatedschooling was a common and accepted policy when the amendment was writtenand passed, Raoul Berger argues, therefore segregated schooling must be constitutional. 6While it may seem reasonable on its face, the resort to original intent raisesa myriad of problems never adequately addressed by its proponents. I shall focuson three types of problems: the Who, the What, and the Why of original intent.First: JVho are the "framers"? All the delegates to the Philadelphia convention?How do we make sense of the idea that this diverse group had a unified intent?The problem is even worse when we realize it was ratification that gave theConstitution the force of law'; over 1600 delegates attended the 13 state ratifyingconventions and many more attended the 37 state ratifying conventions for the14th Amendment. If we rely only on the views of leading men like Hamilton andMadison we have to realize that they were proponents of particular and, as it turnedout later, different theories of the Constitution. 7The second problem is: What are intentions? The immediate expectations of theframers, or their long-term hopes and aspirations? Among the framers were menwho recognized and lamented their inability to live up to their own ideals of humanequality and liberty. It is hard to believe that men like Thomas Jefferson meantto freeze the interpretation of their constitutional ideals and principles accordingto their actual practices. Abraham Lincoln argued that the founders saw no wayto abolish the practice of slavery in their day but, in accordance with their ideals,they meant to place that institution on the course of ultimate extinction. 8To read the framers' intentions from their practices and behavior denies theirgenuine hopes that the country would progressively recognize and live up to the

ideals embodied in the Declaration and the Constitution. Those who attempt tofix the Constitution's meaning by limiting it to the framers' actual behavior ignore

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Praxis International 173the aspirational quality of the framers' project. 9 That the Constitution is law isundeniable. But it is not traffic law. It contains not only rules of conduct but idealsto aspire to, ends and values to be progressively realized. In setting down, forexample, the principle of human equality, Lincoln argued that the framers,meant to set up a standard maxim for free society which should be familiar to all:constantly looked to, constantly labored for, and even, though never perfectly attained,constantly approximated, and thereby constantly spreading and deepening its influenceand augmenting the happiness and value of life to all people, of all coIors,everywhere. 10Another aspect of the "what" problem is, what counts as evidence of intent?Only public records, or private correspondence as well? Even ifwe stick to publicevidence, we must face the fact that there is no public record of the PhiladelphiaConvention, contrary to what Attorney General Edwin Meese has said, all we haveare edited versions of the personal notes of several delegates. 11 Of these, onlyMadison's appear to approach completeness, and they were published posthumouslyafter everyone who had been at the convention was dead. 12The third problem for proponents of the reesort to original intentions is: Whyread the Constitution in light of any sort of particular historial intentions whengeneral language was actually chosen? The text of the Constitution itself does notsuggest the relevance of unstated intentions. The framers could be specific when

they wanted to be. They said, the President must "have attained to the age ofthiry-five years," not the President "must be mature." It would seem to thwartrather than honor the project of the framers to read their sweeping phrases asshorthands for narrow intentions, given that they could have used narrower languagebut choose not to. And as Justice Felix Frankfurter pointed out, what was votedon at each stage ofprocess of framing or amending the Constitution was the proposedlanguage, not the speeches. 13The framers of the First Amendment could have said, "Congress shall makeno law . . . abridging the freedom of [POLITICAL] speech." That is how someproponents of original intent have said we should read the First Amendment; butthat is not the Amendment we have. 14The framers of the 14th Amendment could have said, "No state shall . . . denyto any person within its jurisdiction the equal protection of the laws [ON GROUNDS

OF RACE]." Before his confirmation hearings, Judge Bork said we should readthe 14th Amendment as disbarring only racial discrimination and not, for example,gender-based discrimination. 15 But again, Bark's interpretation is much narrowerthan the Amendment's language. The Amendment speaks to the importance ofequal protection as such, and not only in matters of race.Proponents of original intent fail to take account of the crucial distinction betweenspecific but ambiguous language, and deliberately broad and abstract language. 16The First Amendment's freedom of the press could, conceivably, mean freedomfor grapepresses, or freedom to benchpress, or freedom to press flowers into books.References to original intentions might be one way to clear up ambiguities in aspecific word such as "press."But the difficulty in interpreting the Ninth Amendment has nothing to do withspecific ambiguities. The Ninth says: "The enumeration in this Constitution, of


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174 Praxis Internationalcertain rights, not be construed to deny or disparage others retained by thepeople." The Ninth does not tell us what other rights people have; it is hard tointerpret (nobody said it would be easy). But that difficulty stems from its deliberatebreadth and abstraction, not from any ambiguity. And so, when proponents oforiginal intent come across really broad and open-textured parts of the Constitutionlike the Ninth Amendment or the 14th Amendment's "privileges and immunities"clause, they typically ignore them.So the language of the Constitution, when it speaks broadly and abstractly, seemsto defy narrow "historical" readings. And the framers' actions, as I have pointedout, speak even louder than their words: they conducted the Philadelphia Conventionin secret. No official record of its proceedings was ever published. If they wantedus to be guided by their specific intentions, they choose an astounding strategyto convey those intentions to us.A substantial historical argument now exists suggesting that the Framers of theConstitution themselves did not intend us to be guided by their "intentions." 17If the proponents of original intent are wrong about this, the original "interpretiveintention" of the framers, the jurisprudence of original intent self-destructs. 18So it turns out that the jurisprudence of original intention is a singularly problematic way of reading the Constitution. Why are people drawn to it? The attractionsof the resort to "original intention" are partly products of the political values withwhich it is, in practice, associated. The jurisprudence of original intent is a politicalmeans of reading individual rights narrowly: it is a way of substituting narrowhistorical conceptions for the broad language of the Constitution - not with respectto government powers (to Congress' enumeration of powers for instance) but onlywith respect to rights.Let me add one caveat: I do not mean to dismiss altogether the concern withascertaining the intentions of the Constitution's framers. The framers were aremarkable group of statesmen, and we do well to know why they did what theydid. The Federalist Papers, moreover, remain the best theoretical account ofconstitutional institutions. We have good reasons, then, to repair to writings ofand about the founders. But we should do so with our critical faculties engaged,determined to discern their insights and to discard their mistakes. It is in that spiritthat I will sometimes, in what follows, allude to the framers. It falls to us to decidefor ourselves what the best interpretation of the Constitution is.

2. Democracy and Moral SkepticismTo see the political underpinnings of the resort to original intent (at least forBark, Meese, and company) consider the way these New Right figures characterizethe basic values of the founding document. Bork has said that "The originalConstitution was devoted primarily to the mechanisms of democratic choice . . .The makers of our Constitution provided wide powers to representative assembliesand ruled only a few subjects off limits by the Constitution.' '1 9 Bork reads theConstitution as basically or predominantly' 'democratic" as a way of supportinghis narrow reading of individual rights: The majority's power to pass laws defining

how everyone should live is, says Bark, "the major freedom of our kind ofsociety.' ,


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Praxis International 175By limiting judicially enforceable constitutional rights to those explicitlymentioned in the Constitution, Bark precisely reverses the logic of the framersand the Constitution. Hamilton and Madison originally opposed the inclusion ofa Bill of Rights because they feared that an enumeration of rights would lead

precisely to the conclusion that Judge Bork has drawn: That it is rights that arespecific and limited and government powers that are broad and general. Accordingto Hamilton (in the Federalist # 84) just the opposite is true: Congress' powersare specified and rendered as islands surrounded by a sea of individual rights. 20When a Bill of Rights was added, Madison insisted on the inclusion ofAmendments Nine and Ten to prevent precisely the sort of misreading that Bork fallsinto. The Ninth Amendment tells us clearly and straightforwardly that individualrights cannot be limited to those specifically listed in the Constitution. It is an

"elastic clause" for individual rights that no conscientious interpreter can ignore.And it applies to the states through the 14th Amendment to the Constitution. 21America's founding documents not only signal the existence of unenumeratedrights, they also suggest the proper way of thinking about what these rights are.The Declaration of Independence claims that governments are instituted to "secure""unalienable rights. " The Constitution's preamble spells out its purposes in broadlymoral terms: establishing "justice," promoting the "general Welfare," and securing

"the blessings of liberty for ourselves and our posterity. " The Ninth Amendmentsays unenumerated rights are ' 'retained" by the people, which implies that theyare moral rather than created by government. The Declaration, the Preamble, andthe Ninth Amendment, all signal the importance of serious moral reflection aboutthe sorts of rights and liberties that governments ought to respect.While constitutional rights should not be limited to those specifically enumerated,I do not mean to claim that all moral rights are judicially enforceable constitutionalrights. How, then, does an interpreter decide which unenumerated rights havesufficient constitutional support to justify judicial enforcement? One way is to engagein something like Justice Douglas' project in Griswold v. Connecticut. 22 JusticeDouglas sought, in effect, to discern and articulate the moral principles and valuesunderlying and justifying specified constitutional rights. He then asked what otherrights could be justified by those broad, implicit constitutional values: 23Various guarantees create zones of privacy. The right of association contained inthe penumbra of the First Amendment is one, as we have seen. The Third Amendmentin its protection against the quartering of soldiers "in any house" in time of peacewithout the consent of the owner is another facet of that privacy. The FourthAmendment explicitly affirms the' 'right of the people to be secure in their persons,houses, papers, and effects against unreasonable searches and seizures." The FifthAmendment in its self-incrimination Clause enables the citizen to create a zone ofprivacy which government may not force him to surrender to his detriment. 24

Bark regards Griswold as a paradigm case of judicial tyranny. That case seemsto me, however, to represent a perfectly good way of giving meaning to the rightsexpanding injunction of the Ninth Amendment.Bork turns away from the liberty-expanding moral purposes of the Declaration,the Preamble, and the Ninth Amendment and toward historical intentions because

he, again unlike the Framers, is a deep moral skeptic. For Bark, "moral and ethicalvalues" have "no objective or intrinsic validity" of their own. 25 Rehnquist and


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176 Praxis InternationalMeese have echoed similar skeptical sentiments. 26 Cut loose from text and history,the New Right fears, we find only amoral void governed by personal taste. Fromskeptical premises such as these, of course, nothing follows. But the New Rightconcludes that if personal taste is all, the tastes of the greatest number should win out.Bork's skepticism may seem healthy and' 'realistic," but it is, in fact, radicallyat odds with common sense views of right and wrong. Nobody uninfected witha peculiarity intellectual skepticism could really say, as Bork has, that all moralconflicts come down to conflicts of "gratification": that the issue in Griswold,for example, between individuals claiming a right to use contraceptives and a stategovernment opposing their claims is simply a contest over two sets of gratifications.

For Bark, moral "gratification" must be placed in the same scales with sexualgratification or economic gratification. It is as though the only legitimate groundson which to object to murderers, thieves, and rapists is because their "gratifications"are outweighed by those of their victims.That Bork, Rehnquist and company can advocate both respect for the framersand a radical moral skepticism displays just how selective is their search for historicalintentions. Whatever the framers may have been, they were not moral skeptics.Three basic elements compose New Right jurisprudence: original intent, majoritarianism, and moral skepticism. Each element is, I have argued, doubtful on its faceand radically at odds with the Constitution itself. When we turn to the text andstructure of the Constitution we find a Supreme Court whose constitutional statusis coordinate with that of Congress and the President. We find a government oflimited powers and broad individual rights, in which elective processes are importantbut no more important than a broad sphere of individual rights. And when wego back to the ideas of the Framers (and we should do that, because we can learnfrom them, not because they stand in authority over us) we find a straightforwardrecognition that a robust, independent judiciary is an essential element in theConstitution's scheme of limited government.And so, the New Right's resistance to the vigorous protection of individual rightsturns out to be unsupported by the Constitution itself, the views of the framers,

or even common sense.3. Law and PoliticsIt is worth emphasizing that majoritarianism and moral skepticism underlie the

New'Right's restraint philosophy because judicial restraint is often wronglyportrayed as politically "neutraL" Indeed, one of the great attractions of JudgeBork's view of the judicial role is its apparent modesty. Judicial restraint is portrayedas the refusal to impose one's personal moral or political views on the polity asa whole: "That abstinence from giving his own desires free play, that continuingand self-conscious renunciation of power, that is the morality of the jurist. "27And so supporters of Bark's nomination argued that "Bark, at least in rhetoric,champions a restraint philosophy that will be politically 'neutral" '2 8Here, as elsewhere, the political rhetoric of neutrality does not withstand scrutiny.Fundamental political values underlie any serious exercise in constitutional interpretation or institutional prescription. Judicial restraint is not politically neutral because,as the framers recognized, institutions have tendencies: the nature of the forum


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Praxis International 177in which a political decision is made influences the outcome by structuring thejudgment of those wielding power. The Supreme Court's prophylactic remotenessfrom popular political pressures makes it relatively receptive to rights claims.The Court was designed to make it capable of fairly weighing the claims ofpolitical minorities claiming their rights have been infringed upon. So Hamilton,in the Federalist #78, called the courts 'bulwarks of a limited Constitution"; hedefended the life tenure of Supreme Court Justices, saying,nothing can contribute so much to its [the Court's] firmness and independence aspermanency in office, this quality may justly be regarded as an indespensibleingredient in its constitution, and, in great measure, as the citadel of public justiceand public security. The complete independence of the courts of justice is peculiarlyessential to a limited Constitution . . . . Without this, all the reservations of particularrights or privileges would amount to nothing.To advocate judicial but not executive or legislative restraint stands, given theinstitutional tendency of the Court, for a presumption in favor of the power ofpolitical majorities and against the claims of individual rights. That presumptionis political because it elevates majority power at the expense of individual rightsand legislative limits. One need not endorse Justice Brennan's entire judicial recordto recognize the validity of his charge that,A position that upholds constitutional claims only if they were within the specificcontemplation of the Framers in effect establishes a presumption of resolving textualambiguities against claims of constitutional right. This is a choice no less politicalthan any other; it expresses antipathy to the claims of the minority against themajority.29

This presumption is not only political but unconstitutional: The coordinate statusof the Supreme Court defies any constitutional presumption against individual rights.A vigilant judiciary helps promote the protection of minority rights and, morebroadly, "to secure a steady, upright, and impartial administration of thelaws. "30 Opponents of judicial activism would undermine a political value thatis, perhaps, even more basic than the protection of individual rights, namely, thepractice of reasonable self-government. Perhaps the core value of the institutionof judicial review is that it lodges political power in an institution in which minoritiesand even individual citizens can challenge public officials and popularly electedlegislatures to publicly defend the reasonableness of their actions. We pride ourselveson living constitutional regimes, governments "of laws and not of men." Ifconstitutionalism and the rule of law stand for anything, they stand for the ideathat one basic law applies alike to public officials and citizens, to the powerfuland the powerless, and citizens have a right to challenge government acts in anindependent court of law. 31Not alone, but most dran1atical1y, the political power of courts expresses thecore cOlTI.mitment of liberal constitutionalism: the promise that political power willbe accompanied by public reasons. As Tocqueville argued with regard to the oldregime:The practices of the law courts had entered in many ways into the pattern of Frenchlife. Thus the courts were largely responsible for the notion that every matter of


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S O ~ "it is unfair for to act," saysexcept on the basis of a constrain thenl to consistency,provide a standard for or l '1A::>/I"'\, ':lT"trH"f or \vhat they do, andnot allo\v to unique institutions that n1ask or self-interestin cases.

The politically thing about the courts, on this reading, is not preciselythat they check, constrain, and limit legislatures, but rather hOlV they do it. Thecourts are the fora in which the reasonableness of official interpretations of ourbasic political morality may be questioned and argued out:Judicial review insures that the most fundamental issues of political morality willfinally be set out and debated as issues of principle and not political power alone,a transformation that cannot succeed, in any case not , \vithin the legislatureitself. . .. It holds out the promise that the deepest, most fundamental conflictsbetween individuals and society will once, someplace, finally, become questions ofjustice. 35The political power of the courts helps insure that matters of principle becomepublic. But for this process to be really public, and not the special prerogative

of a judicial elite, we should dismiss the notion that the interpretations of a highcourt, like the Supreme Court, are final not only for the parties before it, but forthe other branches of government. Each branch - legislative, executive, and judicial- gets its power from the constitution, and with that power comes the responsibilityto interpret the nature and limits of its o\vn power. 36 Because the same constitutional problem may arise before all three branches, and because each may cometo a different conclusion, interbranch conflict is built into the system. No rule decideswhose interpretation will prevail: that properly depends on the particularities ofthe case, and the political resources each branch can muster. Important amongthose resources will be the force of public opinion, which will eventually makeitself felt as constitutional questions become political issues. 37Denying the interpretive finality of the Court allows us to see how the otherbranches of government and citizens themselves are drawn into the process ofauthoritatively interpreting the Constitution and, thus, our basic public morality.At its best, liberal constitutionalism constitutes an ongoing public moral argument


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Praxis International 179in this process, the New Right undermines the central aspiration (and one importantjustification) of liberal constitutionalism: to make publicly-principled politicalconduct a self-governing commitment.

4. Principled judicial ActivismA vigilant judiciary helps promote important political values: respect for individualrights and a public commitment to reasonable self-government. While recognizingthe importance of an active judiciary, we should stop short of simply endorsingthe activist legacy of the Warren Court. A more principled judicial activismwouldgive due weight to the Constitution's obvious concern with economic liberties andproperty rights.Most commentators on the left applaud the Court's shift from protecting economic

values to protecting non-economic ones such as privacy. Conservatives like Bark,on the other hand, see the new jurisprudence as no better than the old - they wantthe Court to abandon the protections of all "fundamental" values, economic orotherwise, beyond those explicitly stated in the constitutional text and originallyintended by the framers.The conservatives have a point. Both the old activism and the new are flawed:in both cases the choice of values to be protected is selective and inadequatelydefended. But the proper solution is not to abandon the active judicial scrutinyof legislative acts but to extend it consistent with the Constitution's broad guarantees.At least some constitutional commentators on and off the bench have come torealize that the new "double-standard" is no better than the old. Both economicand other important liberties have a place in the constitution's scheme of values.As Justice Stewart put it in Lynch v. Household Finance Corporation:The dichotomy between personal liberties and property rights is a false one. Propertydoes not have right. People have rights. The right to enjoy property without lawfuldeprivation, no less than the right to speak out or the right to travel is, in truth,a "personal" right. . . [A] fundamental interdependence exists between the personalright to liberty and the personal right to property. Neither could have meaning withoutthe other. 38All too often, when it comes to the economic sphere, the Court requires nothingmore than the barest' 'rationality" to justify restrictions on individual liberty . Thisminimal standard of review has, as applied, often become a mere pretence of review,a veritable blank check for legislatures to deprive people of liberty or equalconsideration with a "due process of law" which is the mere form without the

substance. In some instances where legislators have not put forward any publicjustification for restrictions on economic liberty, the Court has simply hypothesizedits own rationale.39 To announce, as the Supreme Court has, that restrictions oneconomic and other liberties will be deemed acceptable without a meaningful inquiryinto the quality of the case advanced to support these restrictions is to providea cloak for unjust and arbitrary power.A more principled activism would require, at the very least, that governmentsprovide a "real and substantial" justification for restrictions of the full array ofliberties protected by the Constitution's scheme of values. In this way, a principled


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180 Praxis Internationalactivismwould help elevate the legislature's perfonnance by insisting, as Justice JohnPaul Stevens has said, on a pervasive legislative duty' 'to govern impartially. ' '4 0 Inthisway, the Court could go further to make good constitutionalism's aspiration toreasonable self-government.5. Conclusion: Judiciary and ConstitutionalSelf-Government"The test of the moral quality of a civilization, " Jerome Frank observed, "is itstreatment of the weak and powerless. "41 Judicial review expresses our commitment to be governed by more than the power of numbers, prejudice, and narrowinterests - it embodies our commitment to reasonable self-government.I do not mean to dismiss entirely the danger of judicial tyranny. But that danger,I have argued, should be addressed not by undermining the judicial enforcement

of constitutional rights, but by dispelling the mistaken notion that the SupremeCourt is the final or ultimate interpreter of the Constitution for the polity as a whole.We should not disempower the judiciary, but reempower the interpretive capacitiesof Congress and the President. Supreme Court interpretations should be regardedas final only for the judicial branch of government. We should view the courtpolitically as engaged in a dialogue with the other two branches about the bestinterpretation of our fundamental law, our basic political ideals. All three brancheshave a right to interpret in performing their legitimate functions, and neitherCongress nor the President should view Supreme Court interpretations as bindingon them. 42The Constitution is a political document: its interpretation is the province ofall three branches of the federal government and, it must be added, of the citizenryas well. This is why the substantive Senate review of the judicial philosophy ofJudge Barkwas so salutary. Such debates invite not only elected officials but citizensthemselves to deliberate upon the meaning of the founding document. The constitutional judgment of the polity was tested and strengthened by its encounter withthe New Right's jurisprudence. The furor caused by Bork, and the rejection ofhis nomination, showed that the concern with constitutional rights is a politicalforce to be reckoned with. This is good news, for the health of constitutionalismdepends, finally, on the citizenry's commitment to liberalism and the rule of law.As Hamilton argued,What is the liberty of the press? Who can give it any definition which would notleave the utmost latitude for evasion? I hold it to be impracticable; and from thisI infer that its security, whatever fine declarations may be inserted in any constitutionrespecting it, must altogether depend on public opinion, and on the general spiritof the people and of the government. And here, after all, . . . must we seek for theonly solid basis for all our rights. 43The New Right's attempt to bind present interpreters by simplistic referencesto historical intentions manifests, at base, an attempt to locate constitutional virtues

in the nation's founding moment and freeze them there. For New Right "democrats"popular authority is to be identified with the exercise of will not judgment; the


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Praxis International 181At issue, then, in the debate between the New Right and its opponents is not simplythe power of an unelected judiciary but, more broadly, the role of principled publicargument in our politics. What I am suggesting, in a sense, is that we politicizethe Constitution, and thereby constitutionalize our politics. What the Constitutionwould lose in non-partisan luster could, I think, be amply compensated for bya livelier and more pervasive concern with constitutional principle, and a keenerpublic commitment to and capacity for constitutional self-government - whichcommitment and capacity constitute the virtues of liberal citizenship.

NOTES1. Much of the material in this essay is drawn from my monograph, The New Right v. TheConstitution (Washington, D.C., 1987), and an essay, "The Endangered Branch: The Judiciary

Vnder Reagan," which win appear in Assessing the Reagan Years David Boaz, editor (Fairfax,Virginia, forthcoming). My thanks to the Cato Institute for permission to use this material.2. A more extended account of the writings and speeches of these figures can be found in Macedo,The New Right v. The Constitution.3. "Address of the Honorable Edwin Meese Ill, Attorney General of the United States, Beforethe American Bar Association," July 9, 1985, Washington, D.C. (Copies Available from the D.S.Department of Justice).4. Robert H. Bork, Tradition and Morality in Constitutional Law, The Francis Boyer Lectureson Public Policy (Washington, D. C., 1984), 10.5. Robert H. Bork, "Neutral Principles and Some First Amendment Problems," Indiana LawJournal 47 (1971), 8.6. See Raoul Berger, Government By Judiciary (Cambridge, Mass., 1977), chapter 7.7. My criticisms of original intent rely on two excellent discussions: Walter F. Murphy, "Constitutional Interpretation: The Art of the Historian, the Magician, or the Statesman?" Yale Law Review87 (1978), 1752-71; and Ronald Dworkin, "The Forum of Principle," in A Matter of Principle(Cambridge, Mass., 1985), 33-71.8. See The Lincoln-Douglas Debates, ed. Robert W. Johannsen (New York, 1978), 277-8.9. Sotirios A. Barber provides the best exploration (this side of Lincoln at least) of the Constitutionas an aspirational document, see On What the Constitution Means (Baltimore, 1984).10. Lincoln-Douglas Debates, 304.11. Edwin Meese, "Address before the District of Columbia Chapter of the Federalist SocietyLawyers Division" (Nov. 15, 1985), copies available from the V.S. D e p a ~ m e n t of Justice.12. See Winton V. Solberg, The Federal Convention and the Formation of the Union of theAmerican States (Indianapolis, 1976), 67-70.13. Adamson v. California, 332 V.S. 46 (1947).14. Bork, "Neutral Principles," 20. It must be added, in fairness, that Bork has progressivelyabandoned his narrow reading of the First Amendment. What is not clear is how the new Bark canstill claim to be taking original intentions seriously.15. Bork, "Neutral Principles," 14-15.16. See John Hart Ely's discussion, Democracy and Distrust (Cambridge, Mass., 1980), note 66,at pages 198-9.17. H. Jefferson Powell, "The Original Understanding of 'Original Intent,' " Harvard Law Review,98, (1985), 885-948.18. This debate is not over, however, see Raoul Berger's reply to Powell, "'Original Intention'in Historical Perspective," George Washington Law Review, 54, nos. 2 and 3 (1986), 296-337.19. Bork, Tradition and Morality, 9.20. See Herbert Storing's discussion, "The Constitution and the Bill of Rights," in Essays onthe Constitution, ed. M. J. Harmon (Port Washington, N.Y. , 1978).21. I should probably say that it should apply to the states. For those who still care, MichaelKent Curtis has argued that at least some prominent framers of the 14th intended to incorporatethe Ninth Amendment and apply it against the states through the "privileges and immunities" clause,


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182 Praxis Internationalsee No State Shall Abridge (Durham, North Carolina, 1986), 53-4. 22. 381 V.S. 479 (1965).23. Griswold's logic with respect to rights is essentially the same as Marshall' s way of interpretingunenumerated government powers in McCulloch v . Maryland, 4Wheaton 316 (1819); see Macedo,The New Right v. The Constitution, 52-4.24. Griswold v. Connecticut, 381 V.S. 479 (1965).25. Bork, "Neutral Principles," 10.26. Meese, Federalist Society Address, 11; William Rehnquist, "The Notion of a Living Constitu-

tion," Texas Law Review 54 (1976), 704.27. Bork, Tradition and Morality, 11.28. Max Lerner, "Bork's Progress," New Republic, (September 14-21, 1987), 18-20.29. William J. Brennan, speech at Georgetown University, October 12, 1985; reprinted in theNew York Times, October 13, 1985, p. 36.30. The Federalist Papers, #78.31. See the discussions in A. V. Dicey, The Law of the Constitution (Indianapolis, 1982), andAlexis de Tocqueville, The Old Regime and the French Revolution, trans. Stuart Gilbert (GardenCity, N.Y., 1955), 54-6, 1 1 5 ~ 1 2 0 .32. Tocqueville, The Old Regime and the French Revolution, 117.33. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass., 1977), chapter 4.34. Dworkin, Taking Rights Seriously, 162-3.35. Ronald Dworkin, A Matter of Principle (Cambridge, Mass., 1985), 70-1.36. See the discussions in Alexander M. Bickel, The Least Dangerous Branch (New Haven, 1986),chapter 6; and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, 1984),chapters 4-6.37. I discuss these matters at greater length in "Liberal Virtues, Constitutional Community,"The Review of Politics 50, no. 2 (Spring, 1988, forthcoming); and in Liberal Virtues: A LiberalTheory of Virtue, Citizenship, and Community (Oxford, forthcoming).38. 405 U.S.538, 552 (1972).39. See, for two well-known examples, Williamson v. Lee Optical, 348 U.S.343 (1955), andFerguson v. Skrupta, 372 V.S. 726 (1963).40. See Justice Steven's opinions in Craig v. Boren, 429 V.S. 190 (1976); and City of Cleburnev. Cleburne Living Center, 457 V.S. 432 (1985).41. D.S. v. Murphy, 222 F.2nd 698 (1955) at 706; and quoted in Henry Abraham, Freedomand the Court, 4th ed. (Oxford, 1982), 4.42. See the essays collected in The Presidency in the Constitutional Order, eds. JosephM. Bessetteand Jeffrey Tulis (Baton Rouge, 1981).43. The Federalist Papers #84.

2.4 - macedo, stephen - the new right and constitutional self-government in america (en)

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