The Present Danger

...It was he, I believe, who drafted that memorable sentence in John F. Kennedy's inaugural address: " L e t every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and success of liberty...

...Yet, as he must if he is to transcend the terms of the longstanding dispute over judicial review, Ely also finds fault with the restraint position, which he characterizes as "interpretivism...

...It is a clear, soberly argued, persuasive case for the ideological rearmament of the United States in defense not only of its national interests but of the cause of a free and open society everywhere...

...Those for whom the highest virtue is survival at any price, who proclaim that there is nothing in the world worth dying for, have already written for themselves an epitaph of infamy...

...Had the United States followed the foreign policy advocated by the American Quakers when Hitler occupied Western Europe, the world would now be a vast concentration camp...

...B O O K R E V I E W S No matter who emerges as the presidential victor in November, Norman Podhoretz ought to be awarded a Freedom Medal for composing this book...

...When the courts intervene on these grounds, or impose these participational values, they are acting in a legitimately democratic way...

...At the urging of liberal interest groups dissatisfied with conventional, middle class-minded legislatures, courts have assumed law- and policy-making functions that would make early 20th-century critics of "government by judiciary" blink in amazement...

...Ely ambitiously offers a conception of judicial review that is intended to transcend the debate that has-been carried on for a generation between the advocates of judicial activism and judicial reHerman Be/z teaches constitutional /oistory at the University o f Maryland...

...It is that readiness and willingness to resist Communist aggression that Kennan, the pacifists, and the deluded members of the so-called New Left now seek to undermine...

...These provisions, most notably in the Fourteenth Amendment, are "broad invitations to import into the constitutional decision process considerations that will not be found in the language of the amendment" or the provision in question...

...DEMOCRACY AND DISTRUST Richard Hart Ely / Harvard University Press / $15.00 Herman Belz Controversy over the role of the Supreme Court in the constitutional system has been a staple of American politics for so long that one is inclined to dismiss yet another discussion of the problem with the thought that the more things change, the more they remain the same...

...Today Kennan has bought Bertrand Russell's line, " B e t t e r Red than d e a d , " altering it to read "Rather Red than dead...

...In support of this view he points out that the Constitution is almost exclusively concerned with prescribing procedures of government rather than identifying substantive values...

...In Ely's view the dominant themes are identified easily enough: an open political process and equal representation of all groups, especially discrete and insular minorities...

...The wor M outlook of Cyrus Vance, Who was more qualified to be a minister of theGospels than a minister of state, still prevails in many quarters...

...The validity of Podhoretz's analysis, enhanced by an eloquent prose that for all its forcefulness never fails to do justice to the complexity of the problems, is no assurance that it will be acceptable to the media that so much affect public opinion today...

...While he recognizes that participation and representation can be described as "fundamental valu e s , " he sees these things as objective processes embedded in the very structure of the Constitution...

...In a world in which Communist Russia has already threatened Communist China with nuclear weapons, such people ought to understand that "Rather Red than dead" may not be the only alternative...

...This he defines as the belief that constitutional adjudicationcan and should be based on express constitutional provisions, norms stated or clearly implicit in the written Constitution, or the legislative history of the constitutional provision in question without any outside content...

...Quoting Noah Webster (an unlikely authority), he takes the position that writing a permanent constitution binds future There Opportunity America...

...John Hart Ely's Democracy and Distrust is a powerful critique of the "imperialistic" tendencies of the federal judiciary in the past decade, and it provokes us to reconsider the hoary problem of the role of the Supreme Court in.American government and politics...

...Ely contends that this kind of"clause-bound" interpretivism is inadequate because there are some constitutional provisions which have no clear content or definitive legislative history as selfcontained units...

...From this perspective Ely argues that the procedural essentials of republican government--equal representation and an open political order--provide guidance for filling in the content of open-ended constitutional provisions...

...First Red and then dead" may be another...

...And although no one made stronger claims to understanding the nature of Communism than Richard Nixon, he, together with Henry Kissinger, constructed the policy of d6tente and Sidney Hook, the distinguished ctqtie and philosopher, is most recently the author o f Philosophy and Public Policy (Southern Illinois University Press) and Pragmatism and the Tragic Sense of Life (Basic Books...

...Unfortunately, this prospect does not terrify those like George Kennan, who at one time called on the American people to recognize the Kremlin's "implacable challenge" to the free world, to embrace an historical situation that " h a s made their entire security as a nation dependent upon their pulling themselves together and accepting the responsibilities of moral and political leadership" involved in a serious struggle...

...Yet none should 32 THE AMERICAN SPECTATOR SEPTEMBER 1980 know better than Kennan that surrender (the end term of the process of Finlandization) and war are not the only alternatives, that the Communists will never undertake a war unless they are certain to win it, and that only the readiness and the willingness to resist the Communists have prevented the outbreak of the Third World War...

...Who would have believed that Arthur Schlesinger, Jr.--whose The Vita/Center was a clarion call to oppose Soviet expansion at a time when the USSR, devoid of atomic weapons, was incomparably weaker than it is today--would regard the Soviet invasion of Afghanistan as no cause for alarm...

...The trouble with this method of constitutional adjudication, Ely argues, is that it is essentially undemocratic: Supposedly objective social values that ostensibly form the basis ot ~ decisions are really the judges' own values and preferences...

...Bloomington, Indiana a l THE AMERICAN SPECTATOR SEPTEMBER 1980 33...

...tofical lesson that pacifism and unilateral disarmament merely encourage totalitarian expansion, so clearly demonstrated during the thirties, has been lost on many today...

...I refer not to' Ely's contention that legislative history is often incomplete and thus not a dependable guide to the meaning of certain constitutional provisions...

...Podhoretz's book is a plea for the recognition that these alternatives are not exhaustive, that there is still a fighting chance to save both peace and the free world...

...In most cases, moreover, the aggrandizing decisions of the courts have at best a far-fetched if not a wholly imaginary relationship with the written Constitution...

...One of them is its disregard of history...

...THE PRESENT DANGER Norman Podhoretz / Simon & Schuster / $7.95 Sidney Hook acquiesced in the Helsinki accords, which formalized the Soviet bondage of Eastern Europe without any effec 5 tive reciprocal concessions to the free world...

...Although the general outlines of Ely's theory of judicial review will appeal to conservatives in its attempt to restate the theory of judicial review along more responsibly democratic and less politically subjective lines, it does present certain problems...

...It is a fact worthy of note that Ely, a former law clerk to Chief Justice Warren and fi well-known defender of constitutional liberalism, appears to have more in common with the restraint rather than the activist poin.t of view...

...Although Podhoretz does not covet the term "cold warrior" or characterize himself as such, he will undoubtedly be denounced as a cold warrior by ritualistic liberals who ignore the fact that in the past the outbreak of a "hot war" in Europe was prevented by the "cold war...

...That would be a mistake, however," for the recent interventions of the federal courts--and the jurisprudential underpinnings of those interventions--represent not simply a continuation of earlier trends, but marked innovation...

...Democratic participation and representation, Ely concludes, constitute the "promise" that the Constitution makes to future generations, to which fidelity is due...

...Basically Podhoretz's argument is a skillful development of the foreign policy position of the organized American labor movement, which has done so rfiuch to rally democratic forces on a world scale against the encroachments of totalitarianism...

...E] Sarkes Tarzian Inc...

...Particularly valuable in Podhoretz's historical analysis is his evenhanded criticism of the role of both Democratic and Republican administrations in abandoning the policy of containment so painfully developed after Truman discovered what Franklin and Eleanor Roosevelt had bequethed him with respect to the Soviet Union and good old Joe...

...Nor should we forget the refusal of Gerald Ford, on the advice of Kissinger, to give an audience to Solzhenitsyn at approximately the same time that Brezhnev was receiving Gus Hall...

...Conservatives may find it paradoxical, but the fact is that the most embattled defenders of the values of a free society and the policy of resolute defense against the expansion of Soviet totalitarianism have not been free-market fetishists, libertarians, and other representatives of theological and economic fundamentalism but have been the members of the organized labor movement of the United S t a t e s - - t h e AFL-CIO...

...Willy Brandt's Ostpolitik, apparently irreversible, and France s irresponsible national egoism are evidence of a neutralism that seems to affect all the NATO countries (except, perhaps, England) by eroding their will to resist Communist aggression...

...Already we are hearing that the invasion of Afghanistan is really a defeat for the Soviet Union and that the Soviet Union, despite the evidence of Communist penetration in Asia, Africa, and Central America, is weaker now than it was before it enlarged its influence...

...Podhoretz sounds two ominous notes in his grimly realistic appraisal of the world today...

...His sharpest criticism is directed at those--judges and scholars alike--who in the name of social progress would have the courts assume a legislative role and in their decisions formulate public policies based on the discovery of "fundamental values...

...The first is that it may already be too late to reverse the balance of Soviet power against the free world and arrest the progressive Finlandization of Western Europe...

...straint over the nature of constitutional adjudication...

...Even graver than the spirit of neutralism is a revival of the attitude that survival at any price is preferable to the risk entailed *by resisting Soviet nuclear aggression...

...Eisenhower himself understood the nature of Communism no more than Roosevelt, as he demonstrated not only during the last days of the War, in his failure to take Berlin, but at the time of the Korean War and the Hungarian Revolution...

...This mood is sure to grow as we are overwhelmed with grisly and highly exaggerated accounts of the inescapable costs of any nuclear conflict, however limited...

...Podhoretz understands, as others do not, that the American abandonment of the cold war has not stopped the Soviet Union from intensifying it under the cover of d&ente, or from acquiring prepondera:nt power in the world...

...Where, then, does one turn in trying to make sense of and apply the open-ended provisions of the Constitution...

...Ely answers that one must stay within the confines of the Constitution and supply the needed content by consulting "the general themes of the entire constitutional document...

...Ir is not the kind of analysis that the readers of this journal will have any difficulty accepting, but it should be required reading for those conservatives who, together with certain anti-American libertarians, fail to see that restricting free enterprise with the Soviet Union, at least in some areas of trade, is a necessary part of the defense of a free society whose basic values transcend the freedom to buy and sell...

...That is true enough...

...The his...

...At its worst, as in the abortion law case of 1973, the activist approach produces decisions that are not simply ,bad constitutional law...

...they are not constitutional law at all because they lack any rational relationship to the text of the Constitution, or to any value, principle, or structure marked out by it as special...

...What is disturbing, rather, is Ely's dismissing as "fake" the argument that when the judiciary applies the Constitution it is applying the people's'will...

...Looking back on its Executive Council's annual statements on foreign policy, one is struck by the prescience, consistency, and accuracy of their analysis of the Soviet Union's devious policies...