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Published January 4, 2005 in FrontPageMagazine

The Strange Case of Justice Breyer and Mr. B.

by Barry Loberfeld

Other than the horror of the reelection itself, nothing has terrified Leftists more than the specter of whom still-President Bush might appoint to the Supreme Court, and so we shouldn't be surprised that they have already dispatched their demon-slayers. But our first glimpse might have us wondering just who is what.

Author, Washington Post columnist, and self-styled "progressive" E.J. Dionne, Jr. believes that Justice Stephen Breyer recently "performed an enormous service to our country" by making the case against the "theories of conservative jurists." Before allowing Breyer to speak, Dionne indulges himself with a preface: "Conservative politicians, including George W. Bush, say they oppose judges who 'legislate from the bench' and hope to fill the judiciary with 'strict constructionists.' That sounds good because we want democratically elected politicians, not judges, making the crucial decisions. Yet" -- what? Yet we must remember that it is not the role of the Court merely to rubber-stamp any and all legislation "constitutional"? That the undemocratic Court is as much a part of our government as Congress, that its function is "to declare all acts contrary to the manifest tenor of the [C]onstitution void" (Hamilton) -- i.e., that it must strike down as unconstitutional any and all laws that violate the civil liberties of anyone? But no, Dionne does not say this, but instead continues: "at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves" -- that is, who want to hold legislation to the standard of the Constitution.

Forget "sounds good" -- isn't that great? Doesn't it mean that the "conservative judges" have mystically morphed into exactly the kind of justices that liberals have always wanted? Isn't it great that now "the trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states" -- states' rights, boo! -- "to make laws ..."? Why aren't Dionne and the rest of the progressive pack howling at the moon in frenzy?

The answer probably isn't that much of a mystery, so I'll tell you the ending of that last quote: "... sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest." In other words, Dionne fears the blade of judicial review now that it's coming down on the neck of the Left. He fears a "return to the time before the mid-1930s when judges struck down all sorts of decent laws ... on the claim that such statutes violated contract and property rights. Such rulings denied legislators the ability to resolve social problems and make our society more just."

Two immediate responses -- one a matter of history, the other of hypocrisy. Dionne is obviously referring to the infamous Lochner decision (among others, no doubt). The Court struck down a law that had prohibited bakery shifts longer than ten hours, which drove the small fourteen-hour bakeries -- where the workers arrived in the late afternoon, baked the bread, slept there overnight, and in the morning removed the bread from the ovens -- out of business and thus spared the large ones any competition. It was a perfect example of "regulating commerce" in the special interest of Big Business. The hypocrisy: Didn't liberals used to scorn authoritarian conservatives who seemed to think that the Bill of Rights stood in the way of their unique "ability to resolve social problems and make our society more just" -- and "decent" and "moral"? Didn't liberals always tell anyone who'd listen that "social problems" were the price we paid for living in a free society?

The spectacle doesn't get any less disturbing when Dionne finally lets Breyer take the podium. The esteemed jurist explains that while early 20th century courts "over-emphasized the importance of constitutional protections of property" -- that is, constitutional protections of a person's right to his own property -- the New Deal court "emphasized the Constitution's protection of the citizen's freedom to participate in government," thus expanding the "scope of democratic self-government."

Looking at this, progressives such as Dionne see only the defeat of "property" and hail the triumph of the General Will. But why limit this interpretation to property? Does an "over-emphasis" on the "importance of constitutional protections" of religion, speech, the press, and assembly also violate "the Constitution's protection of the citizen's freedom to participate in government," i.e., his right to pass laws on such matters? If so, if this citizen does indeed possess such a right of "democratic self-government," then what are we to make of "Congress shall make no law"? What purpose could that clause have other than the establishment of "constitutional protections" against legislative ("democratic") encroachment?

To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?

At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ROBERT BORK?!

How did this happen? How did the same ideology and even terminology -- damned to the lowest depths by the Left not even twenty years ago -- rise up to possess its soul? Once again, the seeming mystery is explained by hypocrisy. Back when the Court "over-emphasized the importance of constitutional protections of property," liberals embraced this ideology as a weapon against such "over-emphasis." However, by 1987, liberals feared -- quite rightly, let there be no doubt -- that this same weapon would endanger many liberties sacred to the coalition of advocacy groups that by then defined "liberalism." Think about it: How many feminists would sacrifice the "importance of constitutional protections" of privacy to "the Constitution's protection of the citizen's freedom to participate in government"? How many would oppose those "constitutional protections" for women that "denied legislators the ability to resolve social problems" such as overpopulation or "population contraction" (take your pick)?

Conversely, conservatives, who had hitherto inscribed in their catechism the tenet that America was a constitutional republic and not a popular democracy, could no longer stand that their approved-by-God legislation kept getting struck down by "activist judges" yapping about the First Amendment and all the other ones. Enter Bork, who told them that the whole purpose of the Constitution -- the "original intent" of the Framers -- was to allow the majority to make its "morality" law. Only the Second Coming would have been more welcome. But today, with the focus again on property rights, this Left-Right reversal has reversed back.

What does this political schizophrenia prove? Only what we already know -- that the struggle between liberals and conservatives isn't over certain abiding principles, but merely how any principle can be opportunistically invoked to promote one's agenda. Another recent demonstration of this can be found in Reason: Why Liberals Will Win the Battle for America by Clintonite Robert Reich, who explains that "Radcons" -- radical conservatives -- "believe in virtuous behavior. People should act in ways that promote the public good. Robert Bork warns of the 'radical individualism' of those who 'wish to be unhindered in the pursuit of pleasure.'" And Reich responds how? Does he condemn this viewpoint as a quintessential conservative evil? Does he counter that respecting the rights of all people to act in ways they choose promotes -- indeed, constitutes -- the public good? Does he affirm, as a quintessential liberal alternative, the unalienable right of each man to the pursuit of his own happiness? On the contrary: "Bork is right. But rather than worry about the unhindered pursuit of carnal pleasure, Bork and other Radcons should worry about the uninhibited pursuit of wealth and power." So, whereas radical conservatives want to punish the indulgence of lust and worldly pleasures with laws that violate the First Amendment, reasonable liberals will win the battle for America by punishing the indulgence of greed and worldly goods ...

With laws that identically violate the First Amendment? If our concern is with judicial integrity, the answer cannot help but be yes, since it's impossible to see the liberals' position as any less theocratic. But what's most frightening about all this is that they really just don't care. For them, the Constitution is ultimately nothing but a hurdle to their extraconstitutional goals. In any conflict between the Constitution's position and the Left's, it is the latter that must prevail -- by any means necessary.

That is why any praise for a particular judicial approach, as with this Breyer-Dionne case, is never more than fair-weather. What liberals have consistently praised are those judges -- e.g., Brennan, Marshall -- who, apart from any coherent legal theory, simply gave them what they wanted. Thus the Left seeks to pack the Court with fellow travelers the way the mob seeks to with a jury. This is not judicial "activism," but judicial corruption.

Equally corrupt, however, is this fiction that majoritarian democracy embodies the "manifest tenor" of the Constitution. Progressives and conservatives alike peddle this ideology (again, when it serves their respective purposes) for the same reason that, as Madison explained, the Constitution rejects it: "[T]here is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies ... have ever been found incompatible with personal security, or the rights of property...." But contrast this with Bork, who begins by concurringly quoting G.K. Chesterton, a previously underappreciated touchstone of American constitutional exegesis: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." Now there is no way to miss the parallels between this statement and those of Breyer and Dionne, but Bork himself comments, "The makers of our Constitution thought so too, for they provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution." Indeed, they did? Observe how Bork, unable to find an echo of Chesterton in the words of either the Framers or the Constitution itself, hears it in what he believes to be the structure of the Constitution. But does that structure sound that note?

To answer these questions, let us turn to, not Madison, but the Framer who may be considered the most congenial to Bork and the Bork Left: Hamilton. Bork here is claiming that the body of the Constitution says GOVERNMENT CAN DO ANYTHING, with the Bill of Rights adding EXCEPT THESE THINGS. Yet recall Hamilton's objection to the Bill of Rights: It "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" In other words, we didn't need the EXCEPT THESE THINGS because the Constitution doesn't say GOVERNMENT CAN DO ANYTHING. With the inclusion of the Bill of Rights -- more a reinforcement than a redundancy -- our Constitution doubly protects individual liberties from majoritarian ("representative") violation. The Bork-Breyer disinterpretation of the Constitution is the very "colourable pretext" Hamilton feared. It is the macabre transformation of Madisonian liberal republicanism into Rousseauian totalitarian democracy.

Yes -- totalitarian. Robert Bork is no Rufus Peckham, no more a friend to "economic" liberties than to civil liberties (a perverse bifurcation of constitutional liberties). And the same egalitarian collectivism that compelled liberals to embrace this majoritarianism's opposition to "constitutional protections of property," now compels outright socialists to embrace its opposition to constitutional protections of speech. Commercial speech, sexual speech, "hate speech" (i.e., speech the Hate Left hates), and even political speech -- the sole form that Bork deigned to defend -- have increasingly been attacked as conflicting with "progressive" imperatives, which leaves no doubt what must yield to what. Ideas, it seems, follow their implications -- not the lead of a Robert Reich.

Writing about the role of Freikorps thugs in putting down the Spartacist assault on the Weimar Republic, Ludwig von Mises observed that Germany had "obtained parliamentary government as a gift from the hands of deadly foes of freedom, who waited for an opportunity to take back their present." The Left's campaign against Bork's nomination and its subsequent adoption of his ideology must be seen in the same light. What is crucial now is for all Americans of good will to come together to work out a common understanding of the Constitution by which everyone's legislation will be judged. No more of those ugly and embarrassing brawls between liberals and conservatives to get "their man" onto the Court. There cannot be anything more horrific than allowing the Constitution -- the palladium of our national unity -- to become anyone's weapon in the culture wars.