To the Editor:
Walter Berns makes such a broad-based attack on the constitutional law of the last forty years that one wonders, notwithstanding his disclaimer, whether he accepts the legitimacy of judicial review at all [“Government by Lawyers & Judges,” June]. Given his skepticism about the function of the federal judiciary in protecting individual rights against substantive abridgment by state legislatures, it is highly ironic that he suggests the privileges-or-immunities clause of the Fourteenth Amendment as the proper grounding for protection against state legislation. If the view of the dissenters had prevailed in the Slaughter-House Cases (the 1873 case that Mr. Berns derides as “ridiculous”), that the privileges-or-immunities clause protects those rights “which of right belong to the citizens of all free governments,” the federal judiciary would be even less moored in the text of the Constitution than it is today when it discerns the nature and scope of individual liberties.
Moreover, if the privileges-or-immunities clause were the proper grounding for the elaboration of individual rights under the Constitution, there could be no objection that the guarantees run only against the judicial and executive branches of state governments (as Mr. Berns interprets the other clauses of section 1 of the Fourteenth Amendment, even though the amendment refers to “any State” and not “any State court or sheriff”), for the privileges-or-immunities clause requires that no state shall make or enforce any law that impairs those rights.
There is no real support in the text of the Fourteenth Amendment for what appears to be one of Mr. Berns’s main points: that the amendment intended only Congress and not the courts to define the individual rights protected against state abridgment. Mr. Berns argues that, just as New York may articulate the components of citizenship of New York, so may Congress articulate the privileges and immunities of American citizenship. Of course Congress may do so, but section 5 of the amendment, which gives Congress this power, does not necessarily lodge it there exclusively. By giving Congress the power to enforce the protections of the amendment, section 5 does not render those protections void unless Congress intervenes. Rather, it adds to the powers of Congress enumerated in Article I. As a result, Congress may take affirmative steps to prevent or punish deprivations of fundamental rights by the states, by, for example, enacting a criminal statute prohibiting interference with interstate travel. The rights of the Fourteenth Amendment are nonetheless self-executing against the states, as are the rights of the first eight amendments that operate against Congress and the rights of Article I, section 10, that limit the power of the states by prohibiting them from passing expost-facto laws, bills of attainder, and import taxes.
Indeed, why should the power to define the privileges and immunities of American citizenship rest solely with Congress? If we were dependent on Congress for an enumeration of the fundamentals of American citizenship, we would be in a perilous state indeed; what Congress may grant it may take away. In this regard it is wise to remember that the Framers assumed that fundamental rights existed against the national government, and that the Federalists did not consider a list of such rights necessary, so certain were they of their existence. Indeed, the Federalists were concerned, and in this they were correct, that such a list would encourage people to believe that no other fundamental rights existed. Thus the Ninth Amendment assures us that this is not the case, and that there may well be other rights enjoyed by the people.
It is highly unlikely that the Framers believed that the unenumerated rights retained by the people were to be “filled in” only by Congress as time went on, especially when one notes that, as lawyers and participants in the state and national politics of their day, many of the Framers must have known that most law was “made” by common-law courts in the 18th century, and that legislatures met only for short periods during the year. The role of the courts in making the common law continues to be important in the states—and, interestingly, although Mr. Berns notes that “New York” may define the attributes of New York citizenship, he advances no reason to convince us that the New York Court of Appeals, as well as the New York Assembly, could not inform the notion of New York citizenship. If the New York courts define New York citizenship, do they not legitimately make law—guided, to be sure, by considerations of policy, just as they are when they define the scope of tort liability? Why would, or do, the federal courts act with less legitimacy when they decide what attributes “belong of right to the citizens of all free governments”?
This is not to deny that the process of defining individual rights is a perilous one, especially when the federal courts venture beyond those rights specifically mentioned in the first eight amendments. When the Supreme Court goes far ahead of public opinion in its idea of what the basic rights of Americans are, constitutional discord is certain to result. But this process of constitutional adjudication is not the naked usurpation described by Walter Berns.
To the Editor:
. . . Walter Berns provides irrefutable evidence . . . that judicial review has replaced legislation as the primary instrument of change in our body politic. It is alarming that, according to the evidence provided by Mr. Berns, a great many Supreme Court decisions have gone in one direction in order to negate state (and federal) legislative decisions in the opposite direction. When one adds, as Mr. Berns does, that the Justices are unelected, effectively unrecallable, and can remain on the bench as long as their whimsy dictates (or health permits), alarm turns to fright. . . .
My one quibble with Mr. Berns’s analysis is this: he implies that the Court should not pursue an activist role, because if it does it is usurping the legislative function. But in order to invalidate prior injudicious Supreme Court decisions, doesn’t the Court have to take an activist role? . . . While such an exercise might indeed be abused, a greater abuse would occur if previous unwise decisions were permitted to stand.
To the Editor:
Walter Berns . . . should be thanked for showing how our constitutional guarantees of liberty and the protection of rights rest on the fundamental political and moral principle of self-government, . . . which means that laws are based on the consent of the governed. We consent to the laws that are promulgated because they are created by people who represent our interests. Our legislators, our elected officials, are supposed to reflect our collective interests.
Legislative politics, the politics of interests, require that coalitions be created around common interests. In this kind of politics, not all interests will be satisfied at all times. There are always winners and losers. Those who lose face the challenge of finding ways of becoming part of the next legislative majority. But people with one interest in common may not share other interests; in fact, they can differ widely on other issues. This forces people trying to promote an interest to be moderate in their demands, for if they are not, the coalitions they are trying to form will collapse and they will lose once again. The advantage of legislative politics is that all parties with interests are forced to tolerate differences.
But since legislatures make laws by majority votes, there is always a danger that minorities will need protection against those majorities that want to tyrannize them. To prevent majority tyranny, the Constitution provides a separation of powers. Among other things, it provides the people with certain rights that cannot be denied in the name of any collective interest. One of the roles of the courts is to protect the rights of minorities.
The politics of rights, however, creates disunity rather than unity. Experience with the debates over rights shows that issues can easily be framed in the most extreme terms. Often groups demanding that their rights be protected tend to be unwilling to share those rights with others. Thus, differences of opinion tend to be interpreted as signs of evil intention. . . . Losers begin to believe that what may have originally been their interests are now their rights, and that, in losing, their rights have been violated. Once people interpret every loss as a threat to their rights, they begin to lose their sense of “belonging” to the government to which they have historically consented. Such people are more likely to consider lawless responses because they believe they have no recourse to the legislatures to protect them.
This applies to everyone. When a “minority” perpetually fears majorities and constantly complains that its rights are being violated, it isolates itself even further from the majority. Sooner or later it begins to hate majorities. . . . Similarly, the majority begins to despise those whose rights are protected by the Courts. . . .
These circumstances create an unhealthy polarity, . . . as has been shown in the conflicts created over such issues as abortion and affirmative action.
They also confirm the premise that no matter what the Court does, ultimately a successful political effort on behalf of rights requires the consent of the losers. No matter what people claim “ought” to happen, the fact is that the key to democracy is self-government and the key to this is the consent of the governed. . . . When issues produce intense conflicts, the process of developing consent rests on forcing competing parties with competing interests to turn to legislative politics. . . . This is the only true method of producing toleration. . . .
Martin J. Plax
Shaker Heights, Ohio
To the Editor:
I am in full agreement with Walter Berns on the evils of “Government by Lawyers & Judges.” In the course of his article, however, he makes some strange statements about the thought of the Founding Fathers, and of the Framers of the Constitution. He writes:
In theory, the country was indeed founded by self-interested men who acted in order to secure their private rights; in practice, however, these same men pledged “to each other [their] Lives, [their] Fortunes and [their] sacred Honor.”
The men who signed the Declaration of Independence would be amazed to learn that, in making their honorable pledges to each other, to secure the rights with which they had been “endowed by their Creator,” their practice was somehow at odds with their theory.
Mr. Berns also writes that
In theory, the country was founded by men claiming rights against one another; in fact, they were men closely associated in families, churches, and a host of private institutions.
The country was certainly founded by men who claimed rights. Americans declared “taxation without representation is tyranny.” They were “against” the British for attempting to violate their rights. The rights they claimed were the rights of each, which all were pledged to support and defend. Among the individual rights they claimed were, of course, the rights to be associated in families, churches, etc. Where is the opposition between “theory” and “fact”?
Again, Mr. Berns writes:
According to their books, government is created by men who had been living in a state of nature and are seeking to escape its miseries; in fact, the American government was created by men whose characters had been formed under the laws of an older and civilized politics.
The Declaration of Independence says that
whenever any form of government becomes destructive of these ends [viz., “to secure these rights”] it is the right of the people to alter or to abolish it, and to institute new government . . .
When the American people “dissolved the political bands” by which they had been “connected” to Great Britain, they were not, by the theory of their books, in a state of nature. If they had been, they could not have acted as “one people” or as “the good people of these colonies.” Mr. Berns refers to them as having characters formed by “an older and civilized politics.” But George Washington in 1783 put it better, when he said that the foundation of American government
was not laid in the gloomy ages of ignorance and superstition, but at an epoch when the rights of mankind were better understood and more clearly defined than at any other period.
Further, Mr. Berns writes that
. . . the Framers . . . knew that their principles forbade the use of the laws directly to generate virtuous habits [but] they did not regard it as improper for the laws . . . to support the private institutions in which those habits had been generated and were to be generated.
I do not know what Mr. Berns means by “directly to generate.” But the Northwest Ordinance, which laid down the fundamental pattern for forming the governments of the new states to be added to the union, declares that
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Our Founding Fathers made an assumption that I fear we cannot make today: viz., that in encouraging education one is also encouraging religion and morality. But if morality and religion are really necessary for the happiness of mankind, then their prudent or wise encouragement must be a function of good government. In Federalist 43 Madison writes that
the transcendent law of nature and of nature’s God . . . declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all political institutions must be sacrificed.
Madison is here referring, of course, to the right of revolution announced in the Declaration of Independence. He is doing so to justify the usurpation of authority by the Constitutional Convention in going beyond its instructions from the Congress of the Confederation. But the argument applies in principle to whatever is essential either for “safety” or “happiness.” It should be remembered, moreover, that the argument for disestablishment, in the Virginia Statute of Religious Liberty, is not an argument of indifference toward religion, but rather an argument for promoting purer religion. Certainly other means of encouraging religion—not inconsistent with this means—must also be permissible.
Article XVIII of the Bill of Rights of the Massachusetts Constitution of 1780 is as follows:
A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: and they have a right to require of their lawgivers and magistrates an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.
I cannot recall a more powerful assertion of the relationship between law and morality outside the Hebrew Bible. Where in the world Mr. Berns got the idea that the Framers’ principles forbade the use of law to generate virtue, I cannot imagine. It is true, however, that if there is no virtue in the people, there cannot be virtue in the law that emanates from them. But it does no service to the cause, either of virtue or of freedom, to deny the connection between them so powerfully asserted by the theory no less than the practice of our founding.
Harry V. Jaffa
Walter Berns writes:
I am grateful to Paul Wolfson for his thoughtful consideration of my argument. I must say, however, that, unlike him, I find nothing “ironic” in my reliance on the privilege-or-immunities clause combined with my “skepticism about the federal judiciary.” My argument was that a literal reading of the text of the Fourteenth Amendment suggests that Congress, not the judiciary, was authorized to define the substance of these privileges and immunities. Acknowledging the argument, Mr. Wolfson goes on to say that there is no evidence—“no real support in the text of the Fourteenth Amendment”—to support it; I disagree, but shall not repeat what I wrote in the article or, at greater length, in the book from which the article was excerpted. I might say, however, as others have done before me, that there is in fact “no real support in the text of the Fourteenth Amendment” for the proposition favored by Mr. Wolfson, namely, that it was intended to incorporate the various provisions of the Bill of Rights. And where does all this leave us? Precisely in that “perilous” situation to which he refers in his last paragraph. But again, I appreciate his letter.
My thanks as well to Bryan Taplits and especially to Martin J. Plax for his excellent statement of what it means to say that democracy rests on the consent of the governed.
Harry V. Jaffa wonders “where in the world” I got my ideas about the founding principles. Well, I do not mind saying that I got them from, among others, the Harry V. Jaffa who wrote The Crisis of the House Divided. There he taught me that all the Founders “read the Declaration [of Independence] as an expression of the sentiments of Locke’s Second Treatise of Civil Government”; that in “Locke’s state of nature” men have rights but only “embryonic [rather than] genuine duties”; which means that “no man . . . is under an obligation to respect any other man’s unalienable rights until that other man is necessary to the security of his own rights”; that this priority of rights over duties gives rise to a political problem for which Jefferson (whose attempted remedy was “vitiated by his Lockean horizon”) had no solution and which Abraham Lincoln attempted to solve by promulgating a “political religion,” a political religion based on his “subtle reinterpretation” of the Declaration, or on his “creative” interpretation which may not have been “impeccable historically” but was politically salutary. In short, Mr. Jaffa taught me—and unlike him I remain convinced of its truth—that something had to be added to the Declaration to make it safe for the world, so to speak. That this is so is evident in what Mr. Jaffa says by way of explaining it:
All men admittedly have a right to liberty by the doctrine of the Declaration. But so does every man have a right to life. Now, if we conceive these rights as operative within the Lockean state of nature, we will immediately see that no man is under any necessary obligation to respect any other man’s rights. For example: because I have a right to life, I have a right to kill any man whom I have reason to believe might kill me. That is, I have no obligation to respect the other man’s right to life until he has given me adequate pledges that he will not try to kill me.
Mr. Jaffa taxes me for saying that, in theory, the country was founded by self-interested men “who acted in order to secure their private rights,” but, as the above statement demonstrates, in 1959 he was of the same opinion. What caused him to change his mind—indeed, what caused him quietly to renounce the work on which his good reputation was based—used to be a matter of some concern among his former friends.