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.
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