We experienced these latter consequences three years ago when a number of left-liberal scholars, politicians, and pundits attempted to read Judge Robert Bork out of the American political and constitutional mainstream. Senators Biden, Metzenbaum, and Kennedy, relying in part upon the “expertise” of the noted Harvard legal scholar Laurence Tribe, fashioned a lengthy laundry list of political and constitutional horrors that would presumably follow upon Bork's elevation to the U.S. Supreme Court. With the assistance of a massive lobbying effort on the part of liberal interest groups, Bork's detractors prevailed and Judge Bork did not obtain the position for which he was so eminently qualified.
Three years have passed and Bork is still being pummeled by Tribe and other like-minded scholars. A particularly interesting example of Tribe-like constitutional speculation is John Arthur's The Unfinished Constitution: Philosophy and Constitutional Practice (1989). Arthur's book is of interest primarily because it is indicative of a larger and more audacious attempt to redefine the American political mainstream. My purpose, therefore, is not to provide a systematic critique of the book, but rather to comment on two of its more interesting aspects, namely: (1) its argument that the Federalists, in writing the Constitution, were actually defending the principle of the “neutral” state, and (2) its attempt to apply “neutral state” principles to the issues of abortion, infanticide, and euthanasia. An analysis of these themes will allow us to see what threadbare constitutional garments are worn by those prochoice advocates who would like to stack the deck against prolifers by invoking the dubious principle of governmental neutrality.
An answer to the problem of national self-definition in America is provided by the advocates of the “neutral” state. These persons believe that any attempt by government to promote a particular conception of the good life is, given the pluralistic nature of American society, imprudent at best. At worst, it is a violation of the principles upon which sound and just government is based.
Defenders of the “neutral” state can be found on both the right and left wings of American politics. Espousing a libertarian view of neutrality in order to justify a free market economic system, Robert Nozick contends that government “scrupulously must be neutral between its citizens.” Ronald Dworkin, a welfare-state liberal and constitutional scholar, also endorses the principle of neutrality, claiming that “government must be neutral on what might be called the question of the good life.” Because “each person has a more-or-less articulate conception of what gives value to life,” a government does not treat each person with equal respect and dignity if it prefers one conception of the good life to another.
The argument that there is no single correct perception of what is proper and good for man leads, paradoxically, to the conclusion that there is a proper and good political regime—a regime based on the equal recognition of rights. Moral autonomy becomes the be-all and end-all of our constitutional regime. Our Constitution, on this view, promotes an individualism that is ultimately indifferent to the object of choice because it is choice alone, and the dignity of making choices, that separates man from other forms of existence. In short, Dworkin, Nozick, and other defenders of the neutral state tend to reify the concept of the autonomous self. Politics cannot be used to “impose” one's own conception of the good on other autonomous persons.
That such a viewpoint may be propounded freely in our republic is beyond cavil. But to claim that such a viewpoint is what the Framers had in mind when they wrote the Constitution in 1787 is, as Justice Byron White noted in another context, “at best facetious.” And yet this is precisely what John Arthur attempts to prove in The Unfinished Constitution. If it can be shown, after all, that the founding Federalists were opposed to any government that promoted a particular conception of the good life, might we not then say that Laurence Tribe's and Eleanor Smeal's defense of “reproductive freedom” as a constitutional right is consistent with the principles of Hamilton, Madison, and Jay? Arthur undertakes a daunting task and the battle for the constitutional mainstream is joined.
Arthur reveals his jurisprudential worldview by joining in the denunciation of Robert Bork as not being “in the mainstream of American legal and political culture,” as being in fact “on the fringe” of legitimate constitutional interpretation. Bork, Arthur contends, is far afield precisely because he grounds his jurisprudence in a moral skepticism and positivism that denies “claims of natural rights” as discovered, for example, in “Jefferson's ringing endorsement of self-evident rights in the Declaration of Independence and the Federalists' insistence on separation of powers and the adoption of the Bill of Rights.” If our constitutional republic stands for anything, Arthur suggests, it most certainly stands for individual rights so conceived. (It is curious that Arthur does not extend his denunciation to Justices Holmes and Black, for they, like Bork, would also be loath to engage in a jurisprudence grounded in abstract, non-textual claims of natural rights. Perhaps Arthur's omission is due to the fact that Holmes and Black were on the “correct” side of the moral Zeitgeist in most cases.)
Given that the Constitution is grounded in a recognition of individual rights—rights which must be reinterpreted due to the document's “exceedingly vague” language—Arthur quickly dismisses the jurisprudence of original intent. Whatever the Framers had in mind, it was not a method of constitutional interpretation grounded in moral skepticism. Having cast the miscreants ashore, Arthur begins to define his political and constitutional mainstream.
The mainstream has, according to Arthur, two currents that can be traced back to the debates at the Constitutional Convention in 1787. The republicans (i.e., the reluctant supporters and anti-Federalist opponents of the new Constitution) supported a tradition of political thought that wanted to see government “make of its citizens the best people they are capable of becoming,” to inculcate moral virtue as it was defined by each concrete political community. In short, the republican vision was a communitarian vision. Since the “republican” tradition did not prevail among a majority of convention delegates, Arthur suggests that we must look elsewhere to find the main current of American political thought. He himself finds it in a “federalist” position that is eerily reminiscent of Dworkin's (or Nozick's) neutral state.
The Federalists, according to Arthur, assumed that “people . . . are often ruled by passion and self-interest rather than by respect for others' rights,” that “society is composed of diverse, pluralistic factions,” and that “government should strive to remain neutral with respect to society's various competing factions.” For Arthur, and for others who adopt his interpretation of the Federalists' design, the Framers were “anti-majoritarian.” They recognized the danger that “the majority faction” might attempt to impose its own view of the good and thus undermine each individual's pursuit of his own version of happiness. Their solution: an extended republic in which no one interest or faction could dominate, thus ensuring that “individuals should be left free to pursue their own conception of the good life by a government that aspires to remain neutral” regarding those conceptions.
The only problem with this interpretation of the Framers' vision is that it is wrong. Or, to put the matter in more circumspect Arthurian language, it neither “fit[s] well with the material” nor does “charity” to the Framers' design. Arthur is wrong because of the radically anti-majoritarian bias of his argument—a bias not shared by the Framers because the Framers in general, and Madison in particular, defined “factions” differently from the way in which Arthur defines the term.
Madison, in Federalist No. 10, defined a faction as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Arthur, for little apparent reason, tends to read into this definition of “faction” a commitment to individual moral autonomy. On this reading, I have a “right” to pursue my own conception of happiness, and “the permanent and aggregate interests of the community” are coequal with the protection of this liberty right and the promotion of economic prosperity. A “faction” is any group that attempts to “impose” its own conception of the good on others, and government must be so organized as to prevent any majority or minority faction from doing that.
Thus, the “Federalists'“ anti-majoritarian bias, and their commitment to neutrality between competing conceptions of the good life, lays the groundwork for a Supreme Court whose commitment to such vague notions as “libertarian dignity under law” makes it the supreme umpire in American life. When critics complain that a particular decision has ho basis in the text of the Constitution, Arthur and his friends can invoke this anti-majoritarianism to meet the objection. After all, the Court is only being neutral between preferences; it is certainly not invoking any conception of the political good. Isn't that what pluralism is all about?
Not really. To engage in such formalistic rhetoric is to ignore the substantive conception of human nature (and of a natural moral law) that informed the political thought of both Federalists and anti-Federalists. The Framers were not Tribean individualists, nor were they necessarily anti-majoritarian. While it would be misleading to maintain that the Framers were communitarians who believed that government could resolve all societal problems and eliminate all vices in pursuing the good life, it is simply wrong to assume, as Arthur does, that the Framers wanted to prevent political majorities from “imposing” any view of the good life at all.
Madison's Federalist No. 10 should be seen not as a defense of radical individualism against moral majoritarianism but as a defense of republican self-government. And a republican form of government makes it less likely that factional interests—that is, those groups that defend substantively wrongful and improper public policies—will be able to exercise their plans of oppression against the legitimate rights or interests of the community in general and the individual in particular. A faction, for Madison, is defined not by how much it would encroach upon the autonomous individual but by its dedication to moral and political principles inimical to sound and just governance.
In short, the Constitution is not an anti-majoritarian document. The Framers were not intent upon thwarting democratic self-governance. Rather, they wanted to ensure that the political majority governed justly. And the best way to ensure that they governed justly was, as Willmoore Kendall noted, to leave
the “people” of the new nation organized in a particular way, in constituencies which would return senators and congressmen, and by inculcating in that people a constitutional morality that would make of the relevant elections a quest for the “virtuous” men . . . [who] were to deliberate about such problems as seemed to them to require attention and, off at the end, make decisions by majority vote.
While an extended republic was not absolutely immune to the dangers of factionalism, it was more likely to secure the permanent and aggregate interests of the community than any alternative system. The political constitution, according to Madison, would aim at obtaining for rulers “men who possess most wisdom to discern and most virtue to pursue, the common good of the society.” To interpret that “common good” in “neutral,” individualistic terms, or to believe that the best representative body is a group of nine unelected judges who impose such neutrality on everybody because of their latest excursion into Professor Tribe's political philosophy, is to distort the Constitution beyond recognition.
If Arthur's interpretation of Federalist thought as a defense of the neutral state is, to employ his own terminology, uncharitable, his application of “neutralist” principles to the issues of abortion, infanticide, and euthanasia is unbelievable.
Arthur begins his discussion of these moral issues by admitting that “rather than realizing the federalist ideal of neutrality, the Court in Roe seems to commit itself to the position that the pre-viable fetus is not a living person and has no rights”—a point made by Justice Antonin Scalia during oral argument in the Webster case. Arthur also admits that “the law cannot avoid a commitment on this basic moral issue, the status of a fetus.” The reader begins to conclude that Arthur is, in fact, admitting that when one adopts a “prochoice” position on abortion, one is indeed taking sides and not being neutral.
The reader's conclusion is premature. Arthur tries to extricate himself from this dilemma through an elaborate feat of linguistic legerdemain. He argues that one can take sides and be neutral at one and the same time—by distinguishing between “strong” and “weak” neutrality. Strong neutrality, according to Arthur, “demands that government not take a stand on any moral issue.” Such neutrality is impossible given the need for government to “define the political rights of citizens and establish the tax, contract, and property laws forming the background against which citizens pursue their own ends.” Weak neutrality, however, “requires only that government not advocate or criticize any particular conception of the good.” The “Federalist” perspective demands only weak neutrality because it begins with a commitment to the notion of individual rights, to the idea that each individual has both the right to pursue his own conception of the good and the duty to recognize the same right as accruing to other individuals. In short, weak neutrality allows citizens to “pursue their own ends” and does not advocate any particular conception of the good.
Francis Canavan has aptly pointed out the absurdity of ascribing the word “neutrality” to the latter position, and it is worthwhile to quote him at some length:
. . . all forms of liberalism, even the most statist, regard the ideal situation as one in which the individual freely—and, of course, intelligently— sets norms for himself. If regulation is necessary, as most liberals concede and even insist that it is, its ultimate justification is that it contributes to the individual's freedom to shape his life as he will.
Normlessness, however, turns out to be itself a norm. It is a steady choice of individual freedom over any other human or social good that conflicts with it, an unrelenting subordination of all allegedly objective goods to the subjective good of individual preference. Such a policy does not merely set individuals free to shape their own lives. It necessarily sets norms for a whole society, creates an environment in which everyone has to live, and exerts a powerful influence on social institutions.
Applying Canavan's argument, we begin to see that Arthur's (and other neutralists') refusal to impose any conception of the good is itself dependent on a particular conception of the good—a radically individualistic conception grounded in each individual's “moral autonomy”—which Arthur is willing to impose on everyone by giving it a constitutional imprimatur. To describe such a worldview as “neutral” in any sense—be it strong or weak—is wholly unjustifiable.
Furthermore, even if we assume, as Arthur does, that a Federalist regime ought to commit itself morally to a defense of individual rights, why does the right to choose take precedence over the right to life of the unborn? By what criteria do we absolutize the principle of autonomy independent of the object chosen—even when that choice entails the destruction of innocent human life?
To Arthur's credit, he attempts to deal with this question. To his discredit, he deals with it in such a manner as to leave unprotected not only the unborn, but also those who “do not have the capacities necessary to qualify as a person.” What, you might ask, are the capacities that make a human being also qualify as a person, as a distinct human being who also possesses the right to life? (Note that Arthur readily admits that “whether something is a living human is not the same as its being a person, nor is it necessary that persons also be human.”) Personhood, according to Arthur, “is a psychological idea, requiring us to weigh an organism's mental characteristics.” Thus, for Arthur, only those human beings that display certain mental characteristics are endowed with the right to life. Citing Michael Tooley, he contends that these mental characteristics primarily involve “the capacity to desire the thing to which he or she has the right.” We might fairly conclude that “early infanticide of defective newborns,” or even the mercy killing of poor old Aunt Alice who no longer has the capacity to desire to live, is perfectly legitimate. Moreover, according to Arthur, such a position is consistent with the Federalist's constitutional perspective.
Arthur's “Federalist” would provide constitutional protection for those who would commit infanticide or euthanasia under the rubric of governmental neutrality. Arthur's “Federalist” perspective is, at best, intellectually and morally questionable. For Arthur, a human being has no intrinsic worth or dignity. He only achieves dignity, and obtains rights, when he becomes a person. And he ceases to be a person when he loses the capacity to choose. The principle of the morally autonomous self is elevated to such a height that only those persons who are able to choose are deserving of constitutional protection. The non-autonomous humans seem to be constitutionally insignificant, to be disposed of at will by those human beings who are able to assert their personal autonomy. The neutral state can maintain its neutrality by giving free rein to such choices.
We are justified in concluding that Arthur's neutral state is not neutral at all. Rather, it would impose upon everyone a ruthless orthodoxy that subjects unborn and infirm human beings to the capricious whims of those who believe themselves to be superior because of their ability to exert their will, to realize their autonomous selfhood. In Arthur's thought, we witness one of the last stages in the intellectual decline of contemporary liberalism—a decline that bears monstrous political fruits. Francis Canavan's cautionary words regarding these fruits are worth heeding, lest we become inattentive or indifferent and thereby abandon our constitutional and moral heritage to this new “mainstream” of political thought. Says Canavan:
A pluralist society must perforce strive to be neutral about many things that concern its divided citizens. But it cannot be neutral about all of them. If it tries or pretends to be neutral about certain issues, the pluralist game becomes a shell game by which people are tricked into consenting to changes in basic social standards and institutions on the pretense that nothing more is asked of them than respect for the rights of individuals. Much more, however, is involved: on the fundamental issues of social life, one side or the other always wins.
We ought to recognize that a “shell game” is being played on us by the defenders of the “neutral” state, but the stakes are much higher than in any ordinary game of three-card Monte. Our nation's unborn and infirm stand to lose more than pocket cash if the gamesters are successful.
Robert P. Hunt teaches Political Science at Kean College of New Jersey.