Stephen Macedo: The New Right v. The Constitution. Washington: Cato Institute, 1987.

Originally published in the New York City Tribune, March 23, 1988.

 

2017 Note:

Some three decades later, my reference below to “the Battle of the Bork” may be obscure. Judge Robert Bork was nominated to the Supreme Court by President Ronald Reagan in 1987. At the time he sat on the United States Court of Appeals for the District of Columbia Circuit, prior to which position he had held a chair at Yale Law School. He had made enemies a decade earlier, when he took over as Acting Attorney General of the United States after President Nixon ordered the Special Prosecutor Archibald Cox, who was investigating the Nixon Administration’s cover-up of crimes committed by persons working for the Republican Party during the 1972 election—the ‘Watergate’ scandal. U. S. Attorney General Eliot Richardson refused to follow the order and resigned, as did the Assistant A.G., leaving Bork, who was third in line, to execute the order. During his confirmation hearings before the Senate Judiciary Committee, he was questioned closely by members and eventually rejected, partly as revenge for his role in ‘Watergate,’ but mostly on the basis of his conservative approach to Constitutional interpretation, and particularly his critique of the supposed ‘right to privacy’ underlying the Roe v. Wade decision legalizing abortion.

 

Impassioned, plausible, often telling, as often wrong, this forceful essay carries on the colorful tradition of American Constitutional polemic. Possibly intended as a missile in last year’s Battle of the Bork, it raises questions that will endure long after the ill-fated judge has faded from popular memory.

“The rise to power of the New Right is the preeminent political phenomenon of the last decade,” Professor Macedo writes, ominously. In Constitutional law, the New Right would cause “a basic revision of the nature of citizenship in America” by exalting majority rule over Supreme Court decisions, thus “narrowing… judicial protections for individual rights.”

Macedo begins by attacking the “jurisprudence of original intent” proposed by Attorney General Edwin Meese and developed by such scholars as Bork and Gary McDowell. He rehearses the familiar objections: Who counts as a Framer of the Constitution? What’s the hard evidence of their intentions? What do we do about ambiguous language, changing circumstances, Constitutional amendments?

It must be said that Macedo’s complaints here turn out to be hypocritical. He claims that the Founders themselves rejected “reliance on historical intentions” as an interpretive principle. Obviously, he can make this claim seriously only if he knows what those intentions were—in this case, not to have future generations governed by the Founders’ own intentions. While he is right to say the Founders wanted Americans to engage in “reasoned, legal deliberation” when applying their Constitution to changing circumstances, this in no way abrogates a jurisprudence of original intent, unless one believes the Founders’ intent unreasonable. It is reasonable to suppose the Founders did not find their own deliberations unreasonable, so Macedo’s distinction collapses. Macedo evidently has no knowledge of Emmerich de Vattel’s The Law of Nations, published in 1757 and well-established as a part of American legal education by 1780. Vattel’s long chapter, “The Interpretation of Treaties,” outlines fair-minded principles of contractual interpretation that cut through a great deal of the tendentious blather emitted by academics today. The Founders knew that book.

Macedo justly criticizes some New Rightists, notably the hapless Bork, for their flirtations with moral relativism, for their dubious defense of ‘traditional moral values’ that rests on traditionalism merely, not transcendent moral principles. New-Right majoritarianism follows from this odd mix of skepticism and sentimentalism, both of which incline toward letting majorities do whatever they will. “The Framers were not simple democrats, but republicans who rejected the idea that popular government is necessarily good government.” Macedo sees that “moral abstractions, such as rights and justice, did play a central role in the minds of the Founders”—another unintended nod to intent, it should be noted—and do form an essential part of America’s constitutional tradition.”

The merits of this argument make it all the more unfortunate that Macedo misstates the principles of American constitutionalism in so many other respects. First, he evidently believes the Supreme Court must stand alone in defending individual rights. He ignores the central institutional principle of American republicanism, representation. As James Madison repeatedly emphasizes, each branch of our federal government consists of officials elected by the people or appointed (or elected) by their representatives. Representative government, by refining and enlarging the public views, along with the power balance among the three branches, prevents most systematic abuses of citizens’ natural rights; Supreme Court decisions form only part of this system. It is precisely because their representatives have preferred to let the courts and the bureaucracy overrule the common decencies of normal citizens that New-Right populism has proven so attractive. Representative government needs revival, not Court-ly burial.

It is true that two major institutional checks on federal government power, federalism and the indirect election of presidents and senators, have weakened drastically since the amendments added during the Progressive era. Macedo regards the Supreme Court as the best realistic check on abuse of individual rights by the federal executive and legislative branches. He overlooks the Court’s own role in (mis)interpreting those amendments as warrants for vast federal intrusions into states’ rights, and for the unconstitutional principle of ‘one person, one vote.’ If the federal government has gone too far, the Court all too often has led the way. Why would that Court prove a dependable guardian in the future?

Macedo is a libertarian. He wants the Court to defend liberty on moral issues (pornography, homosexuality) and on economic issues, too. He closely identifies liberty with morality itself, and with community, too. His belief that “liberty and community, finally, are not opposed,” that “a society of free, tolerant individuals is the best form of community,” resembles nothing so much as the 1962 Port Huron Statement, the founding document of the ‘New Left.’ Macedo is Tom Hayden in Izod Lacoste.

In one sense, this is an improvement. Today’s libertarian works to earn his money instead of marrying it. But in place of the New Left’s sentimental egalitarianism, libertarians offer nothing at all. The American Founders fought for the proposition that all men are created equal, that human rights come from human nature itself. Libertarians don’t want to hear about human nature, or the Creator-God who endows human beings with unalienable rights. Nature and God would restrict liberty, if liberty is defined as doing as one likes.

By maximizing the principle of liberty, libertarians finally undermine toleration and constitutionalism themselves. God and nature set the limits that make liberty meaningful. Without such limits, libertarians can aver “sympathy for all that is human,” but they cannot say what humanity is.

Constitutionally, libertarianism logically yields not judicial authority but anarchy, whereby each federal official may interpret the Constitution for himself and act accordingly. Macedo sees this and approves of it, thus deflating his own argument, absent any sense of representative government based upon a firm idea of human nature.

Irving Howe: The American Newness: Culture and Politics in the Age of Emerson. Cambridge: Harvard University Press, 1987.

Originally published in the New York City Tribune, February 4, 1987.

 

A “mist, a cloud, a climate” envelops American culture; Irving Howe calls it “Emersonian.” This cloud does not envelop American politics—or, at least, not so completely. Howe wants to understand what the Emersonians intended to do, what their unconscious motives were and, “pieties apart,” what they can “still mean to us,” a century and a half since Emerson published his seminal essay, “Nature.”

The appeal to nature replaces the appeal to a personal Creator-God—in Emerson’s case, the God of Christianity. By the 1830s, when Emerson resigned from the ministry and began his extraordinary career as a preacher without religion, New England Calvinism had declined, leaving nothing very plausible in its place among its former adherents. Emerson’s own sect, Unitarianism, with its incoherent compromises between revelation and reason, exemplified the implausibility of Puritanism’s successors. Any man of intellectual probity would reject them, but to reject them publicly took social courage as well, and Emerson had that.

Among these spiritual confusions, New Englanders of that time also felt a countervailing self-confidence. In defiance of Europeans’ expectations, the American republic was well established. In Howe’s insightful phrase, that republic “balances limited allotments of power against subterranean yearning for utopia,” with both its moderation and its extremism combining to make people “think they can act to determine their own fate.” “The newness,” as it was called, overbore spiritual anxiety with practical optimism.

Howe understands that Emerson intended to replace the various Christian sects with a new doctrine of his own making. But Howe does not sufficiently consider the significance of the doctrine itself. Emerson would “create himself afresh,” and urge others to do so, “in a perpetual motion of spirit.” How inexplicably finds Emerson’s appeal to be anti-historicist. But Emersonian “Nature” or “God” (he often uses the terms synonymously) is nothing other than Hegel’s Absolute Spirit without dialectic, or, if you prefer, Christian Holy Spirit without personality, and without the other two faces of the Trinity (and therefore without holiness in any recognizable sense). Emerson is anti-historical in his refusal to abide by the dictates of tradition; he respectfully rejects conservatism. But historicism—the belief that each epoch has its own truth, superseding that of previous epochs and to be superseded by that of epochs subsequent to it—frequently appeals to some notion of a ‘spirit’ which, although absoluter, perpetually moves, providing a new ‘absolute’ to each generation. Doctrines of stable essences, such as Platonic ideas, or stable presences, such as the God of the Bible, resist this extreme relativism. Emerson does not—predicting, for example, that Jesus will be superseded (“The Poet,” Essays, Second Series). Howe calls this “a permanent revolution of the spirit,” and reminds us of Marx and Trotsky. Precisely: and they too were historicists. If anything, Emerson was more radically historicist than they, more than Hegel himself, as he anticipated no eschaton, no ‘end of history’ wherein humanity would come to rest.

Howe sees that Emerson “collapsed the distinction between religious and secular, so that the exaltations of the one might be summoned for the needs of the other,” an act Howe wisely finds “more luminous than substantial.” But he wrongly claims that this evidences a “religious” mind, when of course it reveals just the opposite—the utopian mind of a mystagogue of secularism. Howe prefers Emerson’s social and political criticism to his metaphysical doctrine, overlooking the way Emerson’s criticism comes out of the metaphysics, suffering the marks of its origin. Without the metaphysics, which is at least interesting, the criticism would amount to little more than what have become standard ‘progressive’ complaints about private property and military preparedness, seasoned with the heavy spice of moralistic cheerleading when a politically congenial war occurs. Between the metaphysician and the social/political critic is Emerson the moralist, author of “Self-Reliance,” the writer Nietzsche called “the richest in ideas in this century so far.” Howe fails to show why Emerson would interest Nietzsche, and this is no small failing.

Howe writes that Emerson would extend the American Revolution to “the sphere of the spirit.” Yet he criticizes Emerson’s utopianism, his assumption that politics somehow can be bypassed or transcended. This shows that Emerson does not really adhere to the principles of the Revolution. In his appeals to moral sentiment (“self-evident” truths) and to liberty from old forms of oppression, Emerson does resemble Thomas Jefferson, but he lacks Jefferson’s toughness, his political realism. Jefferson never imagines that the moral example of a disarmed country could prove a practical defense against would-be invaders. Emerson did.

The self-reliant Emersonian individualist, turning inward and shedding social claims, unifies himself with the ever-changing Absolute, that is, with a radically non-individualist force. Howe portrays Emerson as being forced reluctantly from this unusual individualism by moral anxiety over slavery. Emerson had always conceived of the Absolute as not only true and good, but as morally good, with immediate, practical guidance for each person. This utopian assumption rounded on itself by forcing Emerson “into the commonplace world of politics, reform, compromise.” “Insofar as Emerson was becoming a reformer pretty much like other reformers, his essential project, the glory of his younger years, had to dwindle.” Further, the rise of industrial society, wherein self-reliance had to give way to collective action, made Emerson increasingly irrelevant; “the factory worker could assert himself as a man,” Howe contends, “only by joining in common action with his fellow workers.” Emerson, then, both succumbed to politics and failed to become political enough.

With all due suspicion of the partisan socialist edge on this critique, one ought nonetheless to acknowledge Howe’s acuteness here. Still, it must be said that Absolutism did very little to cause Emerson to compromise. His speeches on the Fugitive Slave Law and on John Brown typify what would become standard intellectual-in-politics fare, moralism unrelieved by prudence. Of Lincoln’s brilliant alternation of temporizing and intransigence, Emerson understands very little, and then only after the fact. In a sense, of course, Emerson could only welcome his so-to-speak obsolescence. Historicism must admit the passing of everything, excepting only historicism itself.

“In Emerson we have lost a philosopher,” Nietzsche wrote, lamenting “that such a glorious, great nature, rich in soul and spirit,” had not “gone through some strict discipline, a really scientific education.” There may be something more to it than that. In a very ‘Nietzschean’ passage in “Experience,” Emerson asks, “What help from thought? Nature is not dialectic.” Life’s “chief good is for well-mixed people who can enjoy what they find, without questioning.” But any philosopher, including Nietzsche, enjoys what he finds, with questioning. Emerson remains an intellectual (America’s first) and not a philosopher because he knows and questions too little. He affirms and negates, preacher-like. The ‘divinity’ this preacher/prophet reveals resembles the ‘god’ of the philosophers, or nature; it the Hegelian/historicist revision, nature then becomes evolutionary, an instantiation of the Absolute Spirit. But in Emerson it comes to light unphilosophically, that is, in a manner distorted by caprice.

The part of American culture our intellectuals represent habitually arrays itself against American politics. Its absolutist moralizing rests on neither divine revelation nor reason, and therefore veers between vehement assertion and relativist lassitude. Arbitrary strictures, most of them merely fashionable, have too little reality about them to effect much serious political change or conservatism. At most (and therefore at worst) they unhinge the minds of practical men from practical realities, while obscuring principles from almost everyone.