‘Today’s problems are so pervasive, some argue, that we should rethink the fundamental structure of our venerable Constitution. University of Texas law professor Sanford Levinson’s recent book, Our Undemocratic Constitution, argues for jettisoning our present constitutional structures in favor of more flexible institutional arrangements that, he thinks, will prove better adapted to our troubled times.’
Epstein finishes with:
‘No one should defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation, whether or not we continue to operate under what remains of the federal Constitution. The original Constitution was not imbecilic. On many questions, it reflects a level of wisdom that has unfortunately been lost today’
‘The key challenge in the formation of a union among jealous states is to give them confidence that their taxes will similarly be spent on collective goods, and not on transfer payments that subject one faction to expropriation by another. To be sure, there are always some difficult cases, but these are not sufficient to upend the overall system. No one should doubt that the creation of an interstate highway system falls within the conception of general welfare even if the network of local roads does not.’
It’s not that we don’t need the Constitution, it’s that Congress has gotten too far from it, Epstein replies. The libertarian/liberal-progressive divide. There may well be income inequality, and we may well need to spend less and get more tax revenue, but do we spend our way like Keynesians to get there?
Will reviewed J. Harvie Wilkinson’s new book, as Wilkinson points out what may be increasingly lost during the ‘”living constitution” vs “originalism” battle:
‘One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.
Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”’
‘For law students and citizens who are frustrated with the way that all the constitutional methodologies fail, in practice, to deliver on their promise of helping judges separate their political views and judicial decisions, Wilkinson’s primer offers a diagnosis of the problem and a self-effacing solution. As he suggests, the great proponents of restraint in the past, like Holmes and Brandeis, embodied a spirit of humility rather than a grand theory; they displayed “modesty” about their own views “and respect for the opinions and judgments of others.” For embodying the same sensibility, Wilkinson’s book is both unusual and inspiring’
And Will’s take on what is most important to safeguard:
The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty’
A minor quibble, but “…soft as a Shenandoah breeze?”
Bork argues that during the 1960’s, likely starting with the SDS, a form of liberalism took shape that promotes radical egalitarianism (social justice, equality of outcomes) and radical individualism (excessive freedom from the moral and legal doctrines which require an individual’s duty and which form the fabric of civil society). This is the New Left.
Grounded in an utopian vision, fed in part by the affluence of the previous decades and the boredom and yearning of largely well-off youth, the New Left blossomed not merely into the anti-draft Vietnam protests across the nation’s universities, but into a movement that has forever altered American life in mostly negative ways (see Tom Wolfe’s Radical Chic: That Party At Lenny’s… for a rich account of the times).
Bork is quite explicit about the violence and threats of violence he witnessed, the barbarism on display, and the confused, tense years that unfolded (culminating in the Kent State debacle). He was one of two conservative law professors at Yale during the late 1960’s and he argues that events have rarely been represented accurately as he saw them. It is a personal account.
On Bork’s view, the New Left is still quite with us, for the New Left, to some extent, has morphed into the multi-cultural, diversity politicking, equality pursuing liberal left we’ve come to know and love. How much equality is enough? There’s never enough. How free is the individual? Well, he’s almost, if not totally, free. But definitely free from “the patriarchy” and all those silly religious myths. He’s also adrift, mostly engaged in self-gratification and mostly only able to articulate what he’s free from. Hence, the radicalism of the New Left on Bork’s view.
I think Bork is at his best when he highlights how the radical individualist project continues to seek meaning in life through politics, political ideology, gender equality, feminism etc (whereas I would think Bork finds this meaning, a deeper, wiser meaning, in Church doctrine, but the Natural Law folks have problems with him). Bork even concedes that it may be something in the pursuit of liberty itself, as we do have liberty and equality defined in our Constitution, such as they are. On this view, the seeds of its destruction lie within liberty and our founding documents to some extent. Perhaps the old, classical liberalism (equality of opportunity, free markets, party of the working man) will eventually go soft and give way to more radical liberty, given due time. This is what Bork, as a nearly lone conservative amongst older-school liberals, claims happened at Yale in 1967-69.
Bork also puts forth an originalist interpretation of the Constitution. He makes the case that there are simply a lot of cultural elites legislating from the bench, using the Supreme Court as a means to the end of more diversity and equality-making, and that they’ve wandered far afield from the document itself (some background here, if you have a better link or better understanding, drop a line). They court an ultimate danger of undermining themselves, cultivating radicalized people and setting themselves up as the only authority capable of interpreting and directing those people:
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people….the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
As to the legal aspects, I do know that Justices Clarence Thomas, William Rehnquist, and Antonin Scalia have been/were influenced by originalism to some extent. Of course, like Bork, this makes them targets for attack by the opposition:
I must say I find Bork refreshing reading when he helps to reveal the authoritarian (nay, totalitarian) impulses of the “personal is political” crowd. It’s fun to have someone provide context when observing the tolerance crowd keep on doing intolerant things, yet piously and humourlessly demanding tolerance all the same (see what FIRE does in response at college campuses). Many of these people actually do run our universities.
***As an aside, I think what’s happened at Slate magazine helps advance the theory. While politically left, Slate can be a bit edgy, thoughtful, occasionally more of a haven for artists, writers, creative thinkers and iconoclasts (Christopher Hitchens was a good example). As of this writing, commitment to the shibboleths of the Left is the ruling order of the day (see the NY Times as well): You have to toe the line with political correctness and gender and racial equality, and all that individual freedom has limits, obviously, and coalesces around regulated markets, trying to control the public square, and other Statist projects. Such collectivism should make every individual stop and think about how they fit into such a framework.
As for art, as T.S. Eliot points out, a first-rate poet can also chart a course back to church doctrine, though this blog believes art is best served when one points out the obvious problems that religion, politics, law, and polite society have with it. Robert Bork quoting Yeats and Auden is interesting though potentially problematic, but Robert Bork quoting rap lyrics to show cultural decay is a little humourous, and probably just emboldens the opposition.
I think Bork is arguing that unless we stay religious to some extent, and recognize that truth can be revealed to us through the word of God as well as through reason, we will decline (and there are all sorts of declinists out there).