Constitutional Opinions/The Vacant Majority

...It is a great advantage in the courts...

...Unborn babies are as helpless and "underrepresented" a minority as one can find...

...Naturally...

...It is understandable that conservatives are frustrated at the Reagan Administration's slow progress in "de-funding the left'-in detaching leftist advocacy groups from the holds on public funding they secured in the 1970s...

...Political or cultural minorities frequently took pains to conceal their minority status and to identify with the majority...

...When demanded on behalf of minorities, many liberals came to regard such grotesque practices as valuable initiatives, if not indeed rights...

...Conservatives who might have been expected to rally in defense of the majority and the mainstream increasingly seem to be falling prey to similar temptations, however...

...Even Congress finds it easier to respond to religious groups when they present themselves as persecuted victims...

...Phillips has begun his defensive crusade by appealing to the courts...

...But one has to wonder...

...Appeals to the governing pride of majorities are derided as demagoguery...

...Efforts to combat pornography in the name of public morality were derided by liberals as "narrow-minded" or "oppressive" censorship...

...Republican government draws all its energy from the pride of majorities- or would-be majorities-in governing themselves...

...Successive waves of immigrants wrapped themselves in the American flag...

...You don't see many of those stickers anymore...

...Many conservatives have gone a step further by throwing their efforts into voucher schemes for public funding of private schools...

...It's just that they no longer find it necessary to debunk his claim to speak for the majority...

...And that is undoubtedly how the judges see their role...

...The crucial point is that it is a great rhetorical advantage to present one's cause these days as that of a beleaguered minority...

...Still, the reluctance of the majority to reassert its authority, its continuing moral timidity, remains rather baffling-and dismaying...

...The underdog has a claim on our sympathy that is hard to resist...

...The courts, we are told over and over again, must be active "to protect the rights of minorities...

...President Reagan's supine response to international terrorism has been praised by most pundits with our highest term of praise: The President, they say, has responded to provocations with great "judiciousness...

...And •if no one can speak for the whole, how can there be a republic-a public or common thing...

...The fact is that it does not matter...

...It may appeal to the World Court...

...The Supreme Court itself has been very receptive to the pleas of religious minorities-as long as they present themselves as victims...

...And the public seems equally resigned...

...While forced-busing schemes aroused much popular resentment and a good deal of legislative shadow-boxing in the early 1970s, this bizarre social experiment continues more than a decade later, despite its overwhelming rejection by the public (and even by the majority of black voters, if polls are to be trusted...

...Nonetheless, it is sad that so many conservatives now prefer to advocate sheltered sanctuaries for minority viewpoints rather than a common public culture, sustained by public education...

...The thought of a new constitutional convention shocks almost all liberals, not to mention a great many conservatives...

...And the same clamor brought new constitutional provisions in many states for challenging government policies with popular referenda and procedures for "recalling" state officials, including state judges, by direct popular vote...

...In the past this was generally so...

...The champions of religion in public life have begun to respond in a similar spirit...

...Still, the relentless focus on the victims of abortion often obscures the larger point: Do the rest of us want to live in a country indifferent to the routine trashing of life or even "potential life...

...Now that feminists protest pornography as a threat to the rights of women, censorship is suddenly receiving a respectful hearing...

...And surely they are right about this, if about nothing else...

...And it is surely easier to swallow the notion that courts are protecting minorities rather than protecting the majority against itself...

...Not that critics of Jerry Falwell no longer feel the need to denigrate his version of morality...

...Sadder still is the way critics of quotas and affirmative action have begun to present themselves as championing the rights of victims...

...Its most celebrated expression, tax-cutting referenda like California's Proposition 13, appealed to the citizen as a consumer of government services, wearied of high prices...

...Up to a point, there is no great mystery about this...

...Later in the 1970s, when forced busing and ethnic quotas and OSHA regulations on toilet seats seemed to be trying the public patience to the limit, a Harvard professor of government diagnosed the ultimate source of the national distemper: "Not enough good demagogues," he grumbled...

...What the Court cannot abide are dispensations for religion accorded by a generous or sympathetic majority...

...Self-assertion is regarded as most acceptable in the baleful trappings of self-pity...

...This defensive mentality has been carried to its logical conclusion by Howard Phillips and the Conservative Caucus...

...The American people no longer seem to think that their will, even when clear and overwhelming, must prevail...

...It has been quite prepared to decree special privileges or special exemptions from otherwise valid laws: for Amish parents who disapprove of extensive schooling for their children, for the religious pacifist who seeks unemployment compensation because his faith requires him to quit work at a defense plant, for the Seventh Day Adventist whose faith requires her to refuse Saturday employment, and so on...

...They are now arguing for an extension of First Amendment doctrine to prohibit "establishment" (meaning non-coercive public endorsement) of ideological opinion as well as religion...

...But so is national sovereignty...

...This seemed a plausible explanation at the time...

...And so the Reagan Administration has placed virtually all its hopes for reversing the quota schemes of the 1970s on-legal briefs in the courts...

...The people demanded to be heard...

...In the early decades of this century, when courts were sometimes rather highhanded in enforcing their notion of property rights, Congress rang with denunciations of judicial "usurpation...

...This was certainly a reasonable presumption through most Jeremy Rabkin is assistant professor of government at Cornell University...

...An overwhelming majority of Americans support prayer in public schools, for example...

...A government that has become too accustomed to viewing its citizens as victims turns out to have little feeling for the national honor...

...It is true, of course, that our Founding Fathers, who had more experience with successful demagogues, were rather suspicious of "zeal for the rights of the people...

...Very few members of Congress admit to supporting forced busing, but almost all act as if Congress were powerless to stop it...

...All that seems remote from the temper of our times...

...Just as pathetic is the framing of disputes about religion in public life in terms of "rights" and "victims...

...But with far greater provocation, there has been far less popular or political resistance...

...Finally, with President Hoover's blessing, Congress did vote to strip the federal courts of jurisdiction to issue injunctions in a wide range of labor disputes...

...At any rate, the extent to which the "right to life" movement has come to rest its hopes on new Supreme Court appointments is a sad reflection on the condition of a political movement appealing to genuine public morality...

...But are conservatives really so weak and threatened that they should prefer the constraints of "ideological neutrality" to the risks of letting public resources sometimes fall into the hands of opponents...

...Appeals to the citizenry as the ultimate sovereign, however, have been almost as rare as calls to revolution...

...Perhaps more telling than the brute fact of this imperial sway of the courts is the accepted rationale for it...

...Perhaps this is inevitable and appropriate, given the continuing decline of public education...

...Racial separatism and racial preferences were denounced when imposed by the majority-and certainly with reason...

...But it is pitiful to find President Reagan defending school prayer in terms of the "rights" of school children to pray, when the question is so plainly not about rights but about public morality or public atmosphere...

...Perhaps these are merely straws in the wind at a time of temporarily flagging spirits on the right...

...The Federalist cheerfully applauded the great diversity of pecial interests in our continental-scale republic, because this would make it difficult for any one faction to speak for "the people" or even to secure a temporary majority...

...One more outrage and it may be forced to get serious...

...The original Constitution provided institutional curbs on demagoguery as well, in its provisions for an indirectly elected Senate and an indirectly elected President to check impulsive action by the more popular House of Representatives...

...President Nixon talked about the "silent majority," but it remained silent as Nixon's triumphal reelection was successfully undone by his enemies...

...But for the majority to do so on its own struck the Court as an intolerable expression of public support for religious observance...

...But if the majority cannot finally decide for the whole community, who can...

...In this century organized labor roused its followers with patriotic songs, tuneful reminders that "this land is your land," American Jewish leaders spoke eagerly of the nation's Judeo-Christian tradition...

...There seems to be a great urge these days across the political spectrum to seek consolation-and political advantage-in victim status rather than to find pride in identification with a self-governing people...

...Who could be "neutral" enough to judge whether ideological neutrality had been violated...

...But the Reagan Administration is losing patience...

...Many conservative politicians find it easier to protest injustices to individual Allan Bakkes or Brian Webers than to appeal to the majority on whether it wants to see the country divided along racial and ethnic lines...

...Liberal opinion has been particularly receptive to such ploys...

...President Taft muttered about the need to impeach some judges as a lesson to the other's and Theodore Roosevelt barnstormed the country in 1912, urging that the Constitution be amended to make federal judges stand for election...

...In the United States," Tocqueville observed, "all the parties are ready to recognize the rights of the majority because they all hope one day to profit themselves by them...

...But by now one has to wonder whether the problem is not with a demos that discourages would-be demagogues from trying...

...One can hardly begrudge the "right to life" movement for seizing the rhetoric of victimization...

...What a field day critics of "bourgeois morality" would have if turned loose on the public schools with a constitutional injunction of "ideological neutrality" in public institutions...

...Of course, there is always a certain presumptuousness in the claim of the majority to settle the issue (whatever it is) for everyone else...

...In the face of a complacent, overbearing majority, they must assert their power on behalf of the weak and vulnerable in our society-racial minorities, religious minorities, women, the poor, accused criminals and condemned criminals, friends of wildlife, and beleaguered consumers...

...The much vaunted "populist rebellion" of the late 1970s turned out to be rather ephemeral...

...Thus it recently struck down a Connecticut law that required employers to allow a day off for Sabbath observers...

...The majority may be a kind of abstraction most of the time...

...In recent decades, however, political factions seem to have lost any sense of shame in presenting themselves as victimized minorities-because the tactic seems to work so well...

...But since no one who has graduated from junior high school believes that the courts are enforcing rights actually set down by the Founding Fathers, the more candid defenders of judicial activism explain that the courts must "provide representation for underrepresented interests...

...The Court might very well have ordered such concessions case by case out of pity for the religious victims...

...The electoral college plan of the Framers was short-circuited within a decade by the rise of popular parties, appealing directly to "the people" on behalf of particular candidates...

...The provision for selecting senators by state legislatures could not survive populist clamor at the turn of the century...

...It certainly seems to be a foolproof method for winning political acquiescence to judicial activism...

...So we keep offering up more and more victims to international terrorism, while whining about the injustice of it all...

...The majority does not count for much in American politics these days...

...The most dramatic indication of popular passivity, of course, is the extraordinary power of the judiciary...

...of our history...

...But the curious thing is that it has not found a voice elsewhere-or is not interested in being heard...

...Critics who openly scorned the majority got nowhere, for they seemed to be scorning the common man's capacity for self-government...

...It is even a great advantage in politics...

...And this urge carries over in strange places...

...Of course, all these diverse constituencies add up to an overwhelming majority of the electorate-or rather, they would add up to an overwhelming majority, if they actually held the view of their interests ascribed to them by the activist lawyers who claim to "represent" them in court...

...Or at least political challengers did well making demands in the name of the "people'-that is, in the name of the majority...

...In the past two decades, federal courts have been appropriating public funds, taking over the administration of public institutions, treating elected legislators as errant children...

...When Congress could not bring itself to endorse a constitutional amendment to permit school prayer, it settled instead on a statutory guarantee of "equal access" to school facilities for extracurricular religious groups...

...These safeguards, however, presupposed an assertive populace, one that was actually vulnerable to demagogic leadership...

...Perhaps they are wrong in hoping this will instill some generalized respect for religion in young children, without embroiling them in sectarian controversy...

...Perhaps it was never very likely that the majority would find its voice in a Southern Baptist preacher...

...And in a healthy republic, threats to the authority of the majority might be expected to call forth almost as much unified resistance as threats to the national sovereignty...

...Even in political debate, there is a marked tendency for factions to adopt the posture of wronged parties before a court...