Conservatives Adopt Progressive Priorities

Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.

What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism.

Chief Justice William Rehnquist, for example, argued that there is “no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments,” and “no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa.” This meant that when the majority enacts laws, it aggregates the people’s subjective preferences—which then become both morally right and legally valid. “The laws that emerge after a typical political struggle in which various individual value judgments are debated,” he wrote, “take on a form of moral goodness because they have been enacted into positive law.” But it is only “the fact of their enactment that gives them whatever moral claim they have upon us…not any independent virtue they may have.”

Note how this reverses the principles of the Declaration of Independence. The Declaration holds that there are moral truths rooted in universal human nature; these are not matters of choice any more than are the laws of economics or the rules of a healthy diet—lawmakers are confined within them, and the laws they make take on a form of goodness only if they consist with those principles. The fact of their enactment is actually essentially irrelevant to the moral claim they have upon us, because a command is not, and cannot be, normative. (A command to do a wrong thing, for instance, does not thereby cease to be a command—whereas a purported moral rule to do a wrong thing ceases thereby to be a moral rule.) Yet while the Declaration provides that states may only do things “which Independent States may of right do,” Rehnquist’s formulation reverses this: the will of the majority is not only presumptively valid, but the very definition and source of morality; it creates moral law, so that states determine what individuals may, of right, do.

Probably the most influential conservative critic of judicial activism was Robert Bork, who explicitly denounced the Declaration and wholeheartedly embraced the Progressive critique of the judiciary in The Tempting of America. The Constitution’s “Madisonian system,” he claimed, provides that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” This was, of course, the exact reverse of Madison’s actual beliefs; Madison held that nobody is ever “entitled” to rule—and certainly not on account merely of them being majorities. Instead, rulers are authorized to rule, and only within the preexisting rights of individuals.

But while Bork claimed to recognize that courts have a duty to protect the individual against the majority, he provided no recipe for doing so, and he believed individual liberties should be strictly limited to those specified in the Bill of Rights. True, the Ninth Amendment declares that this is the wrong way to read the Constitution: it says that the fact that some rights are specified must not be interpreted to deny the existence or importance of other rights. But Bork tried to dodge the import of the Ninth Amendment by claiming, falsely, that there is “almost no history that would indicate what the ninth amendment was intended to accomplish,” and even likening that Amendment to an “inkblot.” Actually, Madison, Hamilton, and others wrote at length about what that Amendment meant, making clear that it was intended to ensure that nobody would think the Bill of Rights specifies all the rights that people possess.

Bork’s rejection of the idea that rights precede the state and limit its powers is rooted in moral agnosticism. “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy of another,” he writes.

There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ…. The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question. The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.

Thus, despite his reputation for moralistic conservatism, Bork was actually a relativist: the majority has unlimited freedom to adopt its (entirely subjective) moral preferences as law, and to impose those preferences on others. There is no way to judge the rightness or wrongness of the majority’s decisions in this matter, because the fact that a majority has adopted something just makes it right.

This argument was an updated version of the wolf’s view of political authority: legislative majorities have a basic right to do what they want to the citizen and the product of his labor, and those protections that are accorded to individual rights are only matters of legislative grace. In fact, Bork indignantly rejected Justice Harry Blackmun’s statement in his Bowers dissent that individual rights are protected because “a person belongs to himself and not others nor to society as a whole.” Such “extreme individualism,” Bork contended, would lead to a world in which “society may make no moral judgments that are translated into law.” Thomas Jefferson wrote that each of us is “made for ourselves,” and that it would be “slavery” to “suppose that a man had less right in himself than one of his neighbors or indeed all of them put together,” but in Bork’s view, the notion that each person belongs to himself and not to society as a whole “can hardly be taken seriously.” Nobody, he wrote, “should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ‘society as a whole.’”

The confusion between the state’s protection of rights on one hand, and its creation of “rights” (i.e., privileges) on the other, becomes clear when we ask whether the state creates, say, a woman’s right not to be raped. According to the positivist argument, a woman has no fundamental human right not to be raped; her so-called private or voluntary sphere is only a creation of law and hardly voluntary. Without the criminal laws against rape, or legal rules relating to marriage, divorce, and child-rearing, and the regulation of contraceptives, maternity care, or abortion, the relationship between men and women would not be what it now is. Indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all. If a woman wants the right not to be raped, then according to this argument, she must advance and justify that right/privilege in a public forum. The state might give her that right by promulgating and enforcing rules against rape, but only if the lawmakers—who stand in a superior position to her, not in a position of equality—choose to create such a realm of freedom for her.

This example might appear extreme. But it is what Bork endorsed. In a democracy, he argued, the majority has a boundless power to outlaw whatever conduct it finds objectionable, including conduct that takes place in private, harms nobody, and is not witnessed or overheard by anyone else. This is because all law is simply the enforcement of the majority’s subjective and irrational prejudices. Just knowing that some activity is taking place and being “outraged” by it entitles the majority to proscribe that activity. Presumably, this would even include criminalizing private religious beliefs—because “[a] change in the moral environment…may surely be felt to be as harmful as the possibility of physical violence.” But it certainly would include rape, because laws relating to rape are also based on irrational emotional impulses: “[t]here is, indeed, no objection to forcible rape in the home…except a moral objection,” and morality has “no objective or intrinsic validity.”

Thus while Bork claimed to recognize a “moral distinction between forcible rape and consenting sexual activity between adults,” such a distinction was only his personal idiosyncrasy. There is “no objectively ‘correct’ hierarchy” of ethical values, and therefore “no way to decide” whether “sexual gratification [is] more worthy than moral gratification.” So we must “put such issues to a vote,” and “the majority morality prevails.” That, of course, means that a woman’s right not to be raped is only a subjective preference—and one the majority may override at will.

So, notwithstanding Bork’s belief that there is a difference between rape and consensual sex, “the subject for discussion is not my morality…. If a majority of my fellow citizens decide that [rape and consensual sex], while not alike, are nevertheless similar enough so that both actions should be made criminal,” then one must comply with that decision regardless of one’s own opinion; “while I may disagree…it is in the polling booth that my moral views count.” Obviously it would follow from the same premises that the majority may also permit rape by revoking a woman’s rights/privileges. Women would then need to resort to the ballot box to request that protection—assuming the majority sees fit to give them the right/privilege to vote.

We see here the horrifying consequences that follow from the notion that rights are benefits created by the state. That contention empties the word “right” of any real content, and replaces it with a permission extended by the superior state to the inferior individual, when and how the state chooses.

The founding fathers were familiar with this argument, and they rejected it. John Locke, the intellectual progenitor of the American Revolution, is most famous for his Second Treatise of Civil Government, passages of which Jefferson paraphrased in the Declaration. But in his First Treatise, Locke had focused on refuting the arguments of Robert Filmer, a monarchist whose view of rights was remarkably similar to modern positivism. Filmer claimed that government owns citizens, and that it may give them rights or withhold rights from them whenever it sees fit. So, Locke asked in his rejoinder, can princes also eat their subjects? If we recognize that rights are not just government-created permissions, we also can recognize that there are limits on what government may justly do to us. But Rehnquist and Bork held that government comes first, and that it gives people freedom when it wills, and for its own purposes. Their argument, as Locke said, lies in a little compass, and it is this: that all government is absolute monarchy, and the ground they build on is this: that no man is born free.