Olympians on the march: the courts & the culture wars.(Lengthened shadows: IX)

[T]o be "reactionary" means nothing more than to believe that in some of its aspects, however secondary, the past was better than the present.--Leszek Kolakowski

Everything has been said before, but since nobody listens we have to keep going back and beginning all over again.--Andre Gide

Walter Bagehot said of the English constitution, "[I]n the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now no longer true?, So it is with us. We are living with a vision of a Constitution that no longer exists. The reason is apparent. The Constitution, which is, for all practical purposes, the Supreme Court, follows the elite culture. Thus it is that the liberal transformation of the Constitution over the past fifty years has been accomplished by Courts with heavy majorities appointed by Republican presidents (the current count is seven to two).

As cultural dominance passes from one elite to the next, so does the Supreme Court's law change to reflect the views of the new elite. New values are added and old ones abandoned. Not all values, however, can find even remotely plausible support in the historical Constitution. When vagabond values are to be implemented, the Court's declarations that various executive or legislative acts are unconstitutional are often not even colorably related to the charter supposedly being applied. Disregard for text, legislative purpose, and history confers enormous freedom, so that the Court, employing some primitive and often sophomoric version of moral philosophy or natural law, is at liberty to enforce what it chooses. It is not to be expected that lives devoted to lawyers' arts would, upon the donning of black robes, suddenly produce philosophers. We are then governed not by law but by the moods of an unelected, unrepresentative, and unaccountable committee of nine lawyers. What they decide is often law only in the sense that we will obey their ukases, even when they split five to four and the four have by far the better arguments. What they decide is not law in the sense that it has its origin, its root, in any legal materials and that the result falls within a range that would be regarded as acceptable by most judges, past, present, and future. Moods shift; fair readings do not.

The progression is clear on the record. In the last third of the nineteenth century and the first third of the twentieth, the dominant culture was that of the business class, mad the Court often responded with the invention of constitutional rights favorable to that class, striking down reform legislation which, however unwise, was clearly within the constitutional powers of state and federal legislatures. The Court invented, for example, a right to enter into contracts that is nowhere to be found in the Constitution. Lochner v. New York, a 1905 decision, is the classic example. The Court, dividing six to three, struck down a state statute setting maximum hours for bakers as violative of the (nonexistent) right to make contracts. Early New Deal economic regulations were routinely invalidated until a series of retirements and deaths enabled Franklin Roosevelt to remake the Court. The cultural dominance of the business class having been ended by the Great Depression, the new Court freely approved economic regulations and began to prepare the ground for the creation of new rights. An even more momentous shift came with the Court headed by Earl Warren.

The New Deal Court had been philosophically riven. Arthur Schlesinger, Jr., has described the Court as it stood in 1947. The wing occupied by Justices Black and Douglas was "concerned with settling particular cases in accordance with their own social preconceptions," a version of "value jurisprudence" identified largely with the Yale law school. Its dominant theme was equality, as shown by its heavy reliance upon the Equal Protection Clause. Schlesinger, Jr. wrote that "Black and Douglas vote less regularly for doctrines than for interests--for the trade union against the employer, for the government against the large taxpayer, for the administrative agency against the business, for the injured workman, for the unprotected defendant, against the patent holder--so that in the phrase of Professor Thomas Reed Powell 'the less favored in life will be the more favored in law.'" This was a flat contradiction of the judicial oath to "administer justice without respect to persons and do equal right to the poor and to the rich." It was as well an expression of the socialist impulse which, significantly, became the regnant outlook of the Court at a time when the American intelligentsia was socialist. As a consequence of the Warren Court's preference for equal results rather than equal justice, it politicized every branch of the law, statutes as well as the Constitution. Ironically, the Court's favored constitutional implement was the clause of the Fourteenth Amendment promising "equal protection of the laws."

Socialism, however, was then discredited. In practice it produced impoverishment and tyranny so that not even intellectuals could cling to its dream, or at least most of them could not do so publicly. Radicalism took the form of the New Left of the 1960s, which gradually grew more interested in personal freedom unrestricted by law, morals, or even the rules of self-preservation (drugs and filthy living conditions were often considered signs of "authenticity"). The New Left practiced a politics of expression and self-absorption. A vision of radical individual autonomy thus lay at the heart of their world view. There was a good deal of that in their intellectual class elders and now it is the dominant mood of the intelligentsia.