Correspondence
CORRESPONDENCE Setting the Record Straight I think if Mr. Kenner was trying to say in your November issue that higher education, and I have the impression that he was, had a higher degree of...
...That is to say, his teaching virtually accorded with the understanding conveyed by Mr...
...Arkes replies: I esteem that sense of engagement which leads Raoul Berger to write, but I fear that he has merely borne out, with his own, celebrated example, that "distance" (as I said in my article) which "now • R. Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977...
...Carter proposed to put those treaties into effect without the concurrence of two-thirds of the Senate, I could hardly have avoided mentioning a specific passage in the Constitution (viz., Art...
...If Mr...
...It is those premises that explain why Britain may have laws banning discrimination on the basis of race even though Britain has no written constitution...
...In relation to Mr...
...That truth, of course, was grounded in nature, in the things that separated human beings from animals...
...Our own Founders could make judgments about the kinds of constitutions that were better or worse—indeed, they themselves discarded a worse one for a better one—because their understanding was informed by principles that existed independent of the constitutions they were creating...
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...But in the case of discrimination based on race we deal with commitments that arise out of the idea of republican government itself...
...And what else should one expect but that people who are schooled to this temper—and who bear an ordinary esteem for their own judgments—will be less restrained from enacting their own prejudices into law...
...Then too there is John Stuart Mill's disquieting admonition: The disposition of mankind...to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power...
...But since Mr...
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...Those whom Arkes repudiates are well content to leave to the Supreme Court the imposition of moral goals that range beyond the Constitution...
...Since there is no basis for "rights" (in this view) apart from the rights that are created by law, the Declaration could not have recognized rights existing outside the body of domestic law, in cultures and societies other than our own...
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...So when he argues that the Founders were emancipated from any sense of moral ends when they conceived the nature and ends of this government, he apparently thinks he has "clinched" his case when he observes that the Founders sought to bar the government from "meddling with religion...
...Berger's own persuasion: The people who fill out the executive and legislative branches have largely absorbed the notion that there are ultimately no principles of justice outside the canons that are established by majorities in particular societies...
...Kenner see as a genuine educational impulse...
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...It is only for that reason that he can think it pertinent (and even decisive) to point out that, in a discussion of racial discrimination, I make no reference to the Constitution (by which he apparently means no reference to a particular section of the Constitution...
...Kenner was trying to say in your November issue that higher education, and I have the impression that he was, had a higher degree of sustainment under other administrations or that mine was not keenly aware of what Mr...
...Arkes left unanswered how to engraft his "moral principle" upon a Constitution from which it was excluded...
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...Berger's own distance from that tradition is marked, first, by his evident remoteness from any understanding of what is meant, in the strictest sense, by a "moral" proposition...
...In Jefferson's words, they sought to bind down their delegates from mischief "by the chains of the Constitution...
...Like the opponents of Lincoln he seems more disposed to say (if he had to make it explicit) that the self-evident truth of the Declaration must have been really a self-evident lie...
...Berger in drawing the inference from that position: that when the Declaration said "all men are created equal," it could not really have meant "all" men, but all white men or, more exactly, all British subjects...
...But anyone who comes to understand the nature of that principle will come to see also why the same principle would have to reject such policies as reverse discrimination and busing for racial balance...
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...Kenner seems to think in terms of intellectual attainment, then he was wrong...
...Your magazine has done a disservice in the sense that the truth is or up to now has been prevented from fostering the principles of democracy as it sustains its own intellectual community...
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...In the case of racial discrimination, as I argued, the law can adduce as its foundation a categorical truth that meets the conditions I described...
...There is no general philosophic consensus about what is moral...
...Of the moral one may say what Justice James Iredell said of natural justice: "the ideas of natural justice are regulated by no fixed standard: the ablest and purest men have differed upon the subject...
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...On this point his state of mind is unmistakable, and he offers a number of intimations...
...What Mr...
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...But as Lincoln understood, the consequence of this argument was to cut the ground out from under constitutional government itself: For if the only source of right and wrong was to be found in the opinions that were dominant in the society, there could be no basis on which one could ever call into question any policy that was enacted by a majority...
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...Surely decisive in this connection were the NIH-funded experiments of Schlimpf, Schmerz, and Kapow (1969), who repeatedly observed that when experimental animals were dispatched into the world in question with the aid of cyanide, they manifested a marked diminution of their already limited ability to frame English sentences...
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...I honestly find these sickening in much the same way that the Realist bothered me when I saw it ten years ago...
...our laws were subjected to the same stringent test, we would find large portions of them swept away (including a good many of our measures on taxation and the regulation of business...
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...Kenner replies: Since no literate nor quasi-literate reader will have trouble ascertaining the drift, if not the thrust, of the communication purporting to be from the late President D.D...
...As Iredell, a leader in the struggle for adoption of the Constitution, declared, "The people have chosen to be governed under such and such principles...
...And of course it was precisely because the truth of the Declaration was grounded in nature that it did not depend for its validity on the approval or disapproval of majorities...
...Perhaps he leaves out this part of our tradition because he has never himself been fully clear on what the original understanding was...
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...Berger has persuaded himself that he can give an adequate account of the Founders and the men who preserved this Republic without taking seriously the understanding that lay behind these distinctions between natural and civil rights...
...Overwhelming Cynicism I am not 'renewing my subscription, but I thought I would try to send some constructive criticism...
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...To deny that understanding, as Jefferson said, was to suggest that "the mass of mankind" had been "born with saddles on their backs," while a favored few had been born "booted and spurred, ready to ride them legitimately, by the grace of God...
...I really do not like the "Continuing Crisis" and "Current Wisdom...
...It was the truth of "natural equality" (in this limited but momentous sense) that made government by consent necessary...
...but why a majority should be obliged to establish constitutional government is quite another question: Just why a regime of this kind is preferable to a regime unconstrained by law is a matter that can be explained only by appealing, as I say, to standards of judgment that exist independent of any constitution...
...And when the framers of the Fourteenth Amendment grappled with the problem of the emancipated blacks, they did not go beyond securing to them the barest minimum of rights essential to protection from violence and oppression, unmistakably excluding suffrage and segregation...
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...By Arkes' test the Constitution was profoundly immoral, for it sanctioned the institution of slavery...
...No exceptions were noted in repeated trials...
...Said Justice Holmes, "Nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law...
...That they did not look to their delegates as preceptors of morals may be gathered from the ban on meddling with religion...
...That is why Lincoln had to reject Stephen Douglas' policy of solving the problem of slavery through the device of "popular sovereignty" —i.e...
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...As far as Berger can say, a regime of law exists only because a majority in any place has willed it into being...
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...As Lincoln sought to teach us, there are certain substantive things, such as slavery,that a democratic people may not choose, because those substantive ends would be inconsistent with the fundamental premises that give majorities their right to decide...
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...One need only recall how the Holy Inquisition burned men at the stake because heresy threatened the souls of the faithful...
...Despite my own effort to supply that understanding, Mr...
...I can't support you any longer in a direct way, though I do wish you continued publication...
...For that reason he may be disposed simply to doubt the existence of those self-evident truths from which that understanding began...
...I, Section 2...
...See, for example, the remarks of Senator Saulsbury of Delaware in Congressional Globe, 1865-66, Part 1, January 29, 1866, p. 477...
...What I am trying to say is that even a person of relatively coarse sensibilities finds those sections too coarse...
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...Your retraction, should it be construed in the spirit of what I have always contrived, may be sent to my library here where the disposition of it among my papers may be appropriately filed...
...Berger is that a jurisprudence that works in this manner on the basis of "real" principles may have a wider reach in some cases than a law that applies phrases of the Constitution in a formulaic and mechanistic way...
...They have not chosen to be governed or promised to submit upon any other...
...You do a valuable job in most of the magazine, but your overwhelming cynicism and your anti-feminist stance have finally gotten to me...
...They are simply gross...
...and though usurpation may have a benign purpose, it spells, as Cardozo stated, "the end of the rule of law...
...The Founders were not promulgating a system of morals but were erecting a structure of government that would curb greed for ever more power...
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...Berger cannot conceive that principles of morals and law are "knowable," he cannot quite grasp then the discipline that is implicit in the discovery and application of genuine principles: The test of principle is a very rigorous one, and it makes it possible to identify propositions that are nowhere near the standing of principle...
...Dwight D. Eisenhower Abilene, Kansas Mr...
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...What he did not address himself to, as any faculty man with the possible resources should consider, is that at Columbia University under my guidance there had been and I think the record proves that it was a move in the directions indicated by those who like Mr...
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...But he swims upstream, against the current attachment to a result-oriented jurisprudence, the product of the Warren Court's revolutionary innovations, itself an offshoot of Pragmatism: a conception is to be measured by its consequences...
...since for that matter the entire first paragraph yields parsable if not elegant syntax provided only that the clause between commas be moved forward nine words, I have no hesitation in dismissing it as a forgery...
...It was of course the argument in my article that the case against racial discrimination finds its firmest ground in those premises that underlie the very idea of law and constitutions, and which arise out of the concept of morals itself...
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...No principle, moral or otherwise, not drawn from the Constitution, can alter the terms of that consent...
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...Berger simply absorbs the spirit of the age and confounds "morals" with matters of subjective feeling or religious belief...
...But no thinking person will fail to object that these were naive pre-scientific observations, conducted in the total absence of controls...
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...By now, one should think, the source of our troubles should be plain enough...
...But I just cannot take the cynicism of those two departments in your magazine...
...I really do like articles by James Q. Wilson, Irving Kristol, Robert Asahina...
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...They were not neutral, however, in regard to the principles that were necessary to "legitimate" government, for the government they founded was based on a self-evident moral and political truth—the central truth (not "opinion" or "belief') that was mentioned in the Declaration of Independence...
...Berger the only lingering question is why he has not yet wakened to the fact that the "cure" he offers is founded on the very premises which have done more than anything else to produce the malady that afflicts us...
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...The matter would have been different had I been discussing, say, the treaties on the Panama Canal...
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...But we would strike as well at comparable abuses of power carried out by the President and Congress, who have been no less willing than the courts to impose laws on the basis of preferences ungrounded in principle...
...and it gave rise to the inference -that creatures which were capable of giving and understanding reasons over matters of right and wrong did not deserve to be ruled in the way that one ruled creatures which were incapable of giving and understanding reasons...
...Raoul Berger Concord, Massachusetts Mr...
...Berger would seem to suggest that this understanding is news to him: that in his study of the Founders and the statesmen of the Civil War he has never seen any mention of the distinction that was commonly made between "rights that derive from nature" and "rights that derive from government...
...In the debate over the Civil Rights Act of 1866 this distinction was played upon even by men who favored the most restrictive reading of the Constitution...
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...40 The American Spectator April 1978 separates jurisprudence from the tradition of moral and political philosophy that formed its foundation...
...and they explain also why these laws would be valid in our own country even if the Fourteenth Amendment had not been invented (a similar argument in this vein may be found in (continued on page 43) The American Spectator April 1978 41 CORRESPONDENCE (continued from page 41) Charles Black's Structure and Relationship in Constitutional Law...
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...Douglas was more explicit, however, than Mr...
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...My argument was that, before we are justified in imposing laws on other people, we are indeed obliged to establish, as the foundation of our policy, propositions that hold true of necessity for others as well as ourselves...
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...But no such power was conferred on the Court...
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...In the absence of propositions of that kind, the law would simply have to recede from the presumption of overriding private choice and restricting personal freedom...
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...For his own part, Douglas could hold to his position because he professed to recognize no rights grounded in nature: His argument essentially was that all rights emanated from positive law—from the law that was created by men in particular societies...
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...Berger: that "no principle, moral or otherwise, not drawn from the Constitution, can alter the terms" on which a people consents to be governed...
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...But Berger's writing contains no recognition of the principles that exist antecedent to constitutional government...
...Charles A. Lave University of California Irvine, California The Constitution and Moral Philosophy In "Bakke: The Legal Profession in Crisis" (February 1978), Hadley Arkes justly objects to reducing the "ends of the law...
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...The explanation would lead us back to an understanding of why it is in principle good for rulers to be bound by rules apart from their own self-interest, or of what there is in the nature of human beings that makes it fitting and necessary that they be ruled only with justifications grounded in principles...
...In any event Mr...
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...It is useless then to quote Justice Iredell, as Berger does, and suggest that a democratic people may simply stipulate the terms on which it will consent to be governed—and that it may stipulate virtually any conditions it may choose...
...For his "moral principles" Arkes looks to "propositions that are true as a matter of necessity, now and for all time," among them the proposition that racial discrimination is immoral, a conviction that I share...
...He tells us, for example, that "there is no general philosophic consensus of what is moral...
...Berger, too, presumably, would make judgments of this kind, but it is a mark of the peculiar defect in his argument that he cannot account for the bases of these judgments: He cannot explain the principle that enjoins us to create a regime of law in the first place...
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...But anyone who understood the meaning of "morals" or "principles" in the strictest sense could not have assumed for a moment that the validity of a moral principle could be affected in any way by the question of whether that principle commands a "consensus" of opinion...
...But, as Walter Berns reminds us, the Founders could be neutral in regard to religious sects because they understood that the regime was not founded on a religious principle...
...Berger has had some trouble in seeing is that the trend he has decried in the judiciary is animated by the same persuasion that grips the other branches of the government—and which, at bottom, is Mr...
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Vol. 11 • April 1978 • No. 6
