That redoubtable crew, the writers who brought forth the symposium “The End of Democracy? The Judicial Usurpation of Politics” (FT, November 1996), have apparently contributed to our raging economy. For the symposium has led to further rounds of meetings and essays, and now, We the People: The Fourteenth Amendment and the Supreme Court, a scholarly monograph from the pen of Professor Michael Perry of the law school at Wake Forest.
The charges of “judicial usurpation” spring from decisions of the Supreme Court that have agitated our politics over the past fifty years. Those decisions stirred controversy precisely because they touched issues of moral consequence—not only on race and segregation, but on the very matrix of the law, dealing with life, death, and sexuality: abortion, assisted suicide, gay rights. In these cases, the Court proclaimed new rights arising from the logic of the Constitution, and then in the name of the Constitution swept away the laws in the states that stood as barriers to these rights.
The principal novelty that Perry has evidently meant to deliver with his book may be stated in this way: the conservatives are partially right—there is in fact serious judicial usurpation—but the conservatives themselves are guilty of the same vice through their willingness to use the courts to resist policies of affirmative action. Before he sets himself to the task of estimating the work of the symposiasts, Perry seeks to set forth a constitutional theory of the Fourteenth Amendment, the vehicle for judicial usurpation and hence the key to the issue. The central thread running through Perry’s analysis is a concern for discrimination, for treating people unequally, dismissively, in a manner that virtually denies their dignity or standing as full human beings.
The Fourteenth Amendment was the centerpiece of the Civil War Amendments, designed to secure the rights of black people newly removed from slavery. The Amendment was addressed to the action of states (“No State shall . . .”), and it would work mainly to secure those rights against the force of hostile governments in the South. By placing those new rights in the Constitution, the framers sought to put these protections of the law beyond the reach of ordinary majorities in Congress, majorities shifting with the political seasons. These concerns of the Amendment found expression in such formulas as the equal protection of the laws or the due process of law. These were grand formulas of justice that could not be confined to black people, as was well understood at the time. The Amendment was inspired by the need to protect black people, but its formulas of justice had to move well beyond blacks. The Amendment did not create special rights for black people; rather, as Harry Jaffa has pointed out, it secured for black people the “natural rights” that would flow properly for any human beings.
That is not an argument that sits easily with Perry, and yet the issue is bound up in the deepest weave of his argument. Perry recognizes that this sense of the innate equality of human beings finds its origin in a religious understanding that humans were made in the image of something higher: “The proposition that all human beings are sacred (inviolable, etc.) is, for many persons, a religiously based tenet,” he writes. In the spirit of modern liberalism he forgoes that line of explanation as no longer fit for a society divided in its religious understandings. But tellingly, he finds no alternative grounding for his belief that all people have equal and infinite moral worth other than that “many persons who are not religious believers embrace the proposition” that they have such worth. After all of Perry’s embroidery, after all his labored efforts to construct a theory, all of this simply reduces, at the root, to positivism: whether something is right or wrong finally depends on whether “many people” or a majority have come to posit or “embrace” it. Perry has made the most earnest effort, in good will, to think through these vexing questions of the law, but everything he does is finally filtered through the prism of moral and legal positivism.
The very terms of the problem, then, are translated, reduced, purged of their moral substance, so that they produce this curious result: Perry’s argument with the symposiasts in First Things utterly dissolves, for the problems he uncovers in their argument are problems for him, not for them. They are problems, that is, borne of a positivism that most of the symposiasts do not share, for they are adherents to natural law. Not only do they evade the defects that become crippling for Perry, but they can speak, in a more natural language, of injuries and victims, of rights and wrongs, that are mainly screened from view in the concepts employed by Perry.
Take the matter of affirmative action. Perry spends much of this book trying to catch the symposiasts in a revealing contradiction over that issue. When it comes to abortion and gay rights, Perry notes, the symposiasts complain about the substance of the decisions and the arrogance of the judges in removing these issues from the domain of politics, where they may be subject to the deliberation, or the moral reasoning, of ordinary citizens. But, he announces with relish, the symposiasts register no such concern for the trend of decisions, spurred on by conservative judges, striking down schemes of affirmative action.
But return for the moment to the view held by the symposiasts: that assignments of benefits and disabilities based on race are in principle wrong; that they cannot be reconciled with any coherent notion of “law.” A court that struck down policies of that kind would not be condemned by the symposiasts as engaged in “usurpation.” Two of the symposiasts––namely, Robert George and I––have made a point of arguing that courts should be free to act vigorously as courts in articulating the principles of our law. But at the same time, we hold to the Lincolnian view that the political branches should be free, in a comparable way, to act as interpreters of the Constitution, and to resist the judgments of the courts if they find them to be radically unpersuasive.
From this perspective, the President and Congress would be obliged to respect the decisions of the courts as they bore on the litigants involved in the case. But they would not be persuaded, say, to accept the principle of the Dred Scott case if they judged that principle to be wrong. Perry, curiously, cites Lincoln, but without bothering to recall the perspective that Lincoln represented so powerfully on this problem. If he had, he would have relieved at once the puzzlement he expresses as to what, exactly, the symposiasts would put in place as a remedy to judicial usurpation.
With affirmative action, has it not made the most profound difference that the policy seeks its end through a system of racial spoils that sets one race or ethnic group against others; a system that is utterly incompatible at the root with the principle on which the Civil Rights Act of 1964 would be justified? The liberal managers of that bill––men like Hubert Humphrey and Joseph Clark––insisted to their colleagues that the bill would never justify any such system of racial preferences. If anything is clear from the record, it is that the Civil Rights Act would never have passed if it were understood to mandate or even allow the schemes of racial preferences that have become fixtures in the landscape. Beyond that, it is clear from referenda in California and other places that the American people, when given the chance to vote, still reaffirm the principle of racial blindness and reject the scheme of racial preferences. When that evidence is assembled, it is clear that in requiring the policies of affirmative action the judiciary has displaced the judgment of the people, while the people, on their part, have preserved an attachment to the principles of lawfulness.
It would seem then that Perry has it exactly backwards: on affirmative action the judicial usurpation is not on the side of Justices Antonin Scalia and Clarence Thomas, who have held to the original principle. Their resistance to the schemes of racial preference marks a defense of the deeper principles of the Constitution—and even, contra Perry, the settled judgments of “We the People.”
But that understanding of deeper principle is absent from Perry’s account. When he needs to explain then just how “the People” might be mistaken and wrong, his inclination is to solve the problem in positivist terms: the policies ordained by “We the People” may be in conflict with other understandings, long settled, to form a new “bedrock” of constitutional opinion. That notion of a “bedrock” is persistently and pervasively invoked to explain why even faulty judgments, settled over time, become authoritative. But Perry surely realizes that, at the time of Brown v. Board of Education in 1954, the prevailing custom largely supported racial segregation. It was part of the “bedrock,” we might say, as is the aversion to homosexuality, another “bedrock” that Perry would supersede on behalf of a new, improved sensibility. The gauging of bedrocks seems to be, in the end, nothing more than a reckoning of whether opinion has congealed. When Perry wants to override the bedrock of the moment, he appeals to a principle of “human dignity.” Yet even that standard, he admits, does not rest on any principle or truth. It seems to depend, rather, on the “consensus” of opinion that may have taken hold, say, in the law reviews, or in the circles of people who write on the subject.
Perry makes his most notable break with his liberal colleagues on the matter of abortion, but due to its poor foundations this conviction begins to crack—and then crumble. In good positivist form he credits the opinions of the voters when they regard unborn children as human beings, worthy of protection. But he is willing to offset that point and admit certain rights of abortion if there is a keen sense of the burdens borne by women and if the social “costs” of restricting abortion might override the benefits. The utilitarian calculus becomes rather bizarre, however, if one takes seriously the notion that one is dealing with an innocent human life. What “costs,” in cash or convenience, would be accepted in other instances as a justification for taking an innocent human life?
With the same curious detachment, Perry assumes that exceptions for rape and incest are the marks of a more defensible policy in restricting abortion. As a matter of prudence, that compromise may be necessary, but how could it be endorsed in principle without impairing the coherence of the underlying policy? Even with all of the utilitarian razzamatazz, Perry does not seem to doubt that the unborn child is anything other than human and innocent of wrongdoing. If so, how could anything in that state of affairs be altered by the fact that the child was conceived in wrongful acts? Does the child bear any responsibility for these wrongs?
Even were we to grant Perry his conservative judicial usurpation, it curiously diverts attention from the scale, or consequence, of the judicial usurpation that he concedes in other domains. He tells us that Roe v. Wade was a signal instance of judicial usurpation, acknowledged even by liberals such as Ruth Bader Ginsburg and Archibald Cox. In the face of both science and the settled opinions of “We the People,” the Supreme Court removed the protections of the law from a whole class of human beings. Perry also concedes that there is, in the highest reaches of the academy, a whole corps of people who have cultivated the deepest stake in supporting and even advancing this jurisprudence of abortion. If this style of law represents judicial usurpation, apparently there is a formidable section of the political class, rich in resources and influence, that has been able to sustain this scheme of usurpation.
But that is not the main message that Perry in his final moments brings home to his readers. He emphasizes rather the hypocrisy of conservatives in railing against the powers of the Court but being all too willing to use those powers in resisting affirmative action. And yet the usurpation Perry has identified on the matter of abortion is attended with casualties that must be regarded as massive in any scale of measurement. Since the Court installed a regime of abortion on demand, there have been around thirty to forty million abortions, by a conservative estimate. If Perry takes seriously the notion that these numbers measure the destruction of human beings, how can he look up from the figures and notice, not the deaths from abortion, but the contradictions he affects to see on affirmative action? Has he not in fact found judicial usurpation coupled with massive acts of killing? Has he not in fact confirmed the presence of judicial usurpation at a level of moral consequence that must be jolting to anyone of normal sensibility? And when the abuse of power has been associated in other settings with the destruction of innocent life on such a vast scale, has it not usually raised the most searching questions about the state of the regime?
At a certain point, one must wonder: Does a fixation on the scales of utility, or the formulas of positivism, tend to cut off the writer from a more “natural” understanding, accessible to ordinary folk? Burdened with the language of the law reviews, does the writer have more trouble seeing the real victims before him than people with less “theory”? Perry has sought a more “nuanced” treatment of the subject, but the nuances, when collected, yield a rather sobering judgment. Michael Perry is a reflective man, and he is no doubt representative of the commentators now writing in the schools of law. And as he tries to address, through the law, questions of moral consequence, we may indeed see the furnishings of mind that prevail in the schools of law and shape the character of our judges.
Hadley Arkes is the Ney Professor of American Institutions at Amherst College and a Visiting Fellow at the Ethics and Public Policy Center in Washington, D.C.