CONSERVATISM

Conservatives would agree with Robert Bork's understanding of the role of the Supreme Court under the Constitution and with its implicit understanding of the Constitution itself. Bork concluded a 1984 lecture at the American Enterprise Institute in Washington with the following words:

In a constitutional democracy the moral content of the law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latter—and it is a task quite large enough for anyone's wisdom, skill, and virtue—is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.

Bork's is not, of course, the popular view of the judge's role, a fact made manifest by the reaction to his nomination for a seat on the Supreme Court. Some 1,925 law professors—surely a good proportion of the total—publicly opposed his appointment and took the trouble of communicating their opposition to the senate judiciary committee. Bork, they said in one way or another, was out of the "mainstream," as surely he was and is. Whereas Bork would appeal to the Framers' morality, mainstream lawyers, arguing that the Framers represented "a world that is dead and gone," tend to prefer their own; some of them go so far so to accuse the Framers of being morally indifferent, a view popularized by Ronald Dworkin, one of Bork's principal opponents. Dworkin sees the Constitution as in need of moral principles and would supply that need. What is required, he says, is a "fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place."

Conservatives would protest that a Constitution that secures the rights of man—the equal rights of man—to the end of "securing the blessings of liberty" is not lacking in moral principle. Still, had he chosen to do so, Dworkin could have found in the mill of the founding documents an abundance of the grist he wants to grind. There is, for example, james madison's famous statement in the federalist #10 to the effect that the first object of government is the protection of different and unequal faculties of acquiring property. Protecting the equal rights of unequally endowed men can only lead to what Madison said it would lead to, and has in fact led to, namely, different degrees and kinds of property. In short, liberty leads to inequality, not of Madisonian rights but of wealth, position, and rank.

Unlike mainstream (or liberal) lawyers, conservatives are willing to live with this dispensation, and not only because they object to the means used by the mainstream lawyers to change it. The history of Title VII of the civil rights act of 1964 provides an example of those means. That piece of legislation was enacted by Congress to put an end to employment discrimination against blacks and women. But the Supreme Court, over the objections of conservative Justices, including Chief Justice william rehnquist and Justice antonin scalia, has converted it into a statute permitting, and in effect compelling, discrimination favoring blacks and women. Concurring in a case dealing with gender discrimination, a somewhat shamefaced Justice sandra day o'connor indicated how this was accomplished: "As Justice Scalia illuminates with excruciating clarity, [Title VII] has been interpreted … to permit what its language read literally would prohibit." When necessary to further their political agendas, mainstream lawyers, on and off the bench, favor appeals to the "spirit," instead of the written text, of statutes and to what they contend is the "unwritten," instead of the written, Constitution.

No case better illustrates this practice than the 1965 birth control case griswold v. connecticut, and none has given rise to so much criticism from conservatives (and even from a few liberals) as the most prominent of the cases it spawned, roe v. wade, the 1973 abortion decision. To strike down the Connecticut statute forbidding the use of contraceptives—a statute that for practical reasons could not be enforced and for political reasons could not be repealed—the Court found a right to privacy not in a specific constitutional provision but in "penumbras, formed by emanations" from the first amendment, third amendment, fourth amendment, fifth amendment, ninth amendment, and ultimately the fourteenth amendment. To strike down the abortion laws of all fifty states, the Court again invoked this right to privacy, now locating it in the "liberty" protected by the Fourteenth Amendment.

The principal proponent of this kind of constitutional construction, and the chief target of conservative criticism, was Justice william j. brennan, and nothing better illustrates his understanding of judicial power than a draft opinion he wrote during the Court's consideration of frontiero v. richardson (1973), a case decided when the so-called equal rights amendment was awaiting ratification by the states. Frontiero was a female air force officer who was denied certain dependents' benefits—benefits that would automatically have been granted with respect to the wife of a male officer—because she failed to prove that her husband was dependent on her for more than one half of his support. The issue on which the Court was divided was whether sex, like race, should be treated as a suspect, and therefore less readily justified, classification. Brennan, we are told, circulated an opinion declaring classification by sex virtually impermissible. "He knew that [this] would have the effect of enacting the equal rights amendment [but he] was accustomed to having the Court out front, leading any civil rights movement" (Bob Woodward and Scott Armstrong, The Brethren, p. 254). The authors of this account conclude by quoting Brennan as being of the opinion that there "was no reason to wait several years for the states to ratify the amendment"—no reason other than the fact, which Brennan knew to be a fact, that the Constitution as then written would not support the decision he wanted the Court to render.

Conservatives call this judicial activism, or government by the judiciary. It is not for the judiciary—the least responsible and, conservatives could charge, frequently the most irresponsible branch of government—to make the laws or amend the Constitution (or "bring it up to date"). Those powers belong, in the one case, to the Congress and, in the other, to the people in their sovereign capacity. Judges, they say, quoting The Federalist #78, are supposed to be "faithful guardians of the Constitution," not evangels of new modes and orders: "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually." As conservatives see it, one issue dividing them from mainstream (or liberal) lawyers is that of legitimacy: The legitimacy of judge-made law and, ultimately, the legitimacy of the Constitution itself. If, as James Madison put it, the judges are not guided by the sense of the people who ratified the Constitution, "there can be no security for a consistent and stable, more than for a faithful exercise of its powers." The legitimacy of government depends on adherence to the written text, the text the people ratified.

The classic statement of these (conservative) propositions can be found in john marshall's opinion for the Court in marbury v. madison (1803): The "whole American fabric has been erected" on the principle that government derives from, and is dependent on, the will of the people. "The original and supreme will organizes the government, and assigns to different departments their respective powers."

Statements of this sort abound in the literature of the founding period. "In a government which is emphatically stiled [ sic ] a government of laws, the least possible range ought to be left for the discretion of the judges." "If the constitution is to be expounded, not by its written text, but by the opinions of the rulers for the time being, whose opinions are to prevail, the first or the last? [And if the last] what certainty can there be in those powers [which it assigns and limits]?" Both certainty and legitimacy would be put in jeopardy by rules of constitutional construction that, in effect, permit the judges to do as they will. "Would [the Constitution] not become, instead of a supreme law for ourselves and our posterity, a mere oracle of the powers of the rulers of the day, to which implicit homage is to be paid, and speaking at different times the most opposite commands, and in the most ambiguous voices?"

Connected to this issue of legitimacy is the cause of constitutional government itself. As conservatives see it, inequality of wealth, rank, and position is the price we pay for liberty, and it was to secure the blessings of liberty that the Constitution was ordained and established. In Madison's words in The Federalist #10, the Constitution serves to secure liberty by providing "a republican remedy for the diseases most incident to republican government," egalitarian diseases manifested in "a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project." The remedy was to be found in the limits embodied "in the extent and proper structure of the Union"—in a word, in the Constitution. And as Marshall said in Marbury, The Constitution is written in order that "those limits not be mistaken or forgotten." thomas jefferson made the same point when he said that "the possession of a written constitution [was America's] peculiar security."

What conservatives want to conserve is this liberal Constitution, which, as they see it, is endangered by persons styling themselves liberals today. First, there are academic lawyers who treat the Constitution not as law—in Marshall's words, "a superior paramount law, unchangeable by ordinary means"—but as a mere "epiphenomenon," which is to say, as merely one of the factors (and, typically, not a controlling factor) entering into judicial decisions. As one of them puts it, rather than carry any precise meaning that judges are bound by oath to recognize and obey, the most important constitutional provisions "do not rule out any answer a majority of the Court is likely to want to give." The social, historical, and economic conditions take precedence over the Constitution's written text, and they may dictate any outcome. "There is nothing that is unsayable in the language of the Constitution," writes another.

Second, there is Justice Brennan, who writes that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."

Third are historians who, in the course of ridiculing the conservatives' appeal for a jurisprudence of original intent, insist that "our Constitution is no more important to the longevity and workability of our government than magna carta is to the longevity and workability of the British government. Our Constitution is as unwritten as theirs."

Finally, there are journalists who say that "the mere idea of original intent is an absurdity … [that] those men in Philadelphia could not have possibly had an "original intent."

As these statements indicate, the conservative effort to preserve that liberal Constitution will gain little support in the liberal community. Unlike the Framers, today's liberals prefer equality to liberty, an equality of status to an equality of rights, a development foreseen by alexis de tocqueville. Democratic peoples have a natural taste for liberty, he wrote, but their passion for equality is "invincible" and "irresistible," and anyone who tries to stand up against it "will be overthrown and destroyed by it."

In addition, conservatives have to contend with developments in the realm of political thought that, it is said, deprive the Constitution of its philosophical foundations. The Constitution put constraints on the popular will, but, according to Professor Sanford Levinson, those constraints have been deprived of whatever moral authority they might once have had. Constitutional arguments have been rendered meaningless. Indeed, the very idea of constitutionalism is dead: "The death of "constitutionalism' may be the central event of our time," Levinson writes, "just as the death of God was that of the past century (and for much the same reason)." If, as he claims, this view of our situation is "shared by most major law schools," conservatives are engaged in an almost hopeless enterprise. Care of the Constitution was put in the hands of the judges, but the judges are trained in those "major law schools."

Admittedly, and quite apart from the influence of this legal and political thought, governing within the limit imposed by a strict construction of the Constitution has never been an easy matter. federalism is one of its prominent features, and conservatives, today if not in the past, would preserve it in its integrity. They would do so for political, as well as for constitutional, reasons. Like Tocqueville, they appreciate the political importance of what he called "mores," those "habits of the heart" that characterize a people and, in our case, he argued, made free goverment possible. Conservatives would attribute the Constitution's "longevity and workability" not to its flexibility but, at least in part, to the laws of the states where these mores, or morals and manners, are fostered and protected. Directly or indirectly (by supporting the private institutions whose business it is to provide it), these laws are intended to promote the sort of civic or moral education required of citizens in a democracy. Many of them—such as laws dealing with flag desecration, obscenity, indecency, illegitimacy, school prayer, and religious instruction and institutions, the list of which is not endless but is long—have been declared unconstitutional under the Fourteenth Amendment incorporation doctrine. These laws have been declared unconstitutional, conservatives insist, in the absence of any evidence that the framers of the Fourteenth Amendment intended it—originally intended it—to be used for that purpose.

There is, however, an abundance of evidence that the Fourteenth and other post-civil war amendments were intended to affect the federal structure of the Constitution in material respects. The same freedom that allowed the states to be concerned about the moral character of their citizens also allowed them to decide who among their residents were to be citizens and, therefore, who among them were to enjoy the civil rights and the privileges and immunities of citizens. Thus, and without any question, those amendments were intended to deprive states of this power; they would do so by providing what Madison in 1787 criticized the original Constitution for its failure to provide, namely, "a constitutional negative on the laws of the States [in order to] secure individuals agst. encroachments on their rights."

The consequence—if only in our own time—has been a tremendous growth of national power at the expense of the states, and especially national judicial power. Conservatives cannot (and, in most cases, do not) complain when this power has been used to put an end to racial discrimination; as amended, the Constitution not only authorized this but required it. Given what proved to be almost a century of congressional inaction, they would also agree with the Supreme Court's decision in brown v. board of education (1954,1955), the public school desegregation case. Read literally (or construed strictly), the words of the equal protection clause do not lend themselves to the use to which they were put in that case, but—to paraphrase what was said by conservative Chief Justice charles evans hughes on an earlier occasion—while emergencies may not create power, they do furnish the occasions when it may properly be exercised. On such occasions, the conservative rule of "strict construction" must give way to necessity.

Conservatives concede, as they must, that necessity is the mother of invention; where they differ from mainstream liberals, to cite still another aphorism, is in their refusal to make a virtue of necessity. They cannot say, because it would be foolish to say, that the times must be kept in tune with the Constitution; but because our freedom and prosperity depend upon it, they do say, and say emphatically, that the times, to the extent possible, should be kept in tune with the Constitution.

Walter Berns
(1992)

(see also: Bork Nomination; Critical Legal Studies; Liberalism; Political Philosophy of the Constitution; Suspect Classification; Unwritten Constitution.)

Bibliography

Bork, Robert H. 1990 The Tempting of America: The Political Seduction of the Law. New York: Free Press.

Goldwin, Robert A. and Art Kaufman, eds. 1987 How Does the Constitution Protect Religious Freedom? Washington: American Enterprise Institute.

Lerner, Ralph 1987 The Thinking Revolutionary: Principleand Practice in the New Republic. Ithaca, N.Y.: Cornell University Press.

Mc Dowell, Gary L. 1988 Curbing the Courts: The Constitution and the Limits of Judicial Power. Baton Rouge: Louisiana State University Press.

Pangle, Thomas L. 1988 The Spirit of Modern Republicanism: The Moral Vision of the American Founding and the Philosophy of Locke. Chicago: University of Chicago Press.

Rabkin, Jeremy 1989 Judicial Compulsions: How Public Law Distorts Public Policy. New York: Basic Books.