Constitutional Opinions: A Matter of Right and Left
Rabkin, Jeremy
by Jeremy Rabkin A Matter of Right and Left A monthly column should strive to take the long view. Otherwise, it risks being mocked by events of the moment, such as the impeachment of the...
...To get some sense of the stakes, we should look back at the impeachment of Andrew Johnson...
...All were driven from public life within a few years...
...But Deep-seated reasons why Clinton has polarized politics...
...Such behavior is less in the calculating spirit of politicians than in the fighting spirit of soldiers in battle, where some impulse of pride or rage suppresses all ordinary apprehension of mortal peril...
...Yes, yes, the liberal left of recent decades has been infatuated with judicial activism, but the whole point of that activism is to leap over tedious technicalities and legalities—in other words, law—in order to implement the latest fashion in social reform...
...50 The American Spectator • February 1999 the notion that it is simply a culmination of passions aroused in the struggles over the Bork and Thomas nominations, or over Watergate or even over the 1960's — all of that underestimates the stakes...
...Republicans hope to pin the blame for heedlessness and recklessness on Clinton himself...
...The left has made a cult of sincerity and authenticity from the time of Rousseau and the French Revolution...
...By contrast, what grates most on Republicans today is Clinton's lack of hypocrisy...
...At least the leaders were acting in character...
...And the new view lasted nearly a century...
...To see all this as mere partisanship, as most of the country now seems to do, is tomiss the point...
...Had he admitted lying under oath and made a show of remorse for his lawlessness, no impeachment would have been possible...
...And the impulses of the left have often mingled in our history with a home-grown strain of snorting defiance, from Thoreau's civil disobedience to the mass protests of the anti-war movement in the 6o's, the kind of posture that disdains respect for law and governing institutions as mere covers for moral evasions and corruption...
...they are for abortion and gay rights, while the right is opposed to both...
...Republicans have historically been the party of the heartland and old-line Yankees...
...In the 1960's as in the 186o's, Democrats were on both sides of the great polarizing issues, so that the polarization was not simply partisan...
...The president felt compelled to show that he could win over the people and triumph over his accusers...
...Republicans had genuine reason to object to Johnson's legally correct but nonetheless obstructionist enforcement of the reconstruction acts,"write Kelly et al...
...The White House campaign of vilification and obstruction — first against the Starr inquiry, then against the House Judiciary Committee and against every element of legal process— seemed to confirm the most damning assessments of Clinton's character...
...By the end, the Clintonites were insisting that the impeachment was also about Republican hankering for white supremacy and prayer in schools...
...Even those "moderate" Republicans most queasy about the moralism of the religious right have found their interests threatened: Respect for law is essential for business life, and markets dissolve when contracts are open to endless semantic twisting...
...Whatever happens in the next few weeks or months, the outcome of the Clinton scandals won't be known for at least a decade...
...The program of the "Radical Republicans" was to "reconstruct" the South by providing firm federal protection for former slaves...
...So whenever and however he leaves office, Clinton will be with us for a long time to come...
...Yes, the right loathes Clinton and many people have been enraged by his lying and maneuvering since his first presidential campaign...
...What has animated conservatives, then, is a deep-seated impulse to oppose demagogic attacks on law and institutions, and to rally to the defense of fundamental moral authority...
...The Republicans and the Democrats have taken stands that may mark them for many years to come...
...These doctrines...corrupt us and degrade our constitutional order in a profound way...
...When the Reconstruction program collapsed after 1876 —with the return of unreconstructed Southern Confederates to political authority in their home states and to a weighty presence in Congress —the past efforts of the "Radicals" came to be seen as absurdly impractical and as deplorably vengeful and oppressive toward the white South...
...the fundamental disagreement between Johnson and the "Radical Republicans" over the proper policy for "reconstruction" of the defeated southern states...
...Both parties seemed unable to contain their rush to opposing barricades...
...The obvious rejoinder—on which the president's defenders were quick to seize—is that not every felony is even prosecuted, much less prosecuted to the full...
...The Civil War could not have been fought without Democratic support in the North (which is why Lincoln chose a Democrat, Andrew Johnson, as his running mate in 1864...
...The differing social base of each party is an exacerbating factor, one that reinforces the ideological cleavage as never before...
...People with no strong reason to defend Clinton decided that hisstruggle was their struggle because his enemies were their enemies...
...Their hearts are not in it...
...Republicans may for a generation be seen as so obsessed with sex that they nearly brought on a constitutional crisis over it...
...But what stiffened the backs of Republicans in the run-up to the impeachment vote was Clinton's response to this immediate scandal...
...We must wait to see how it has defined or redefined us...
...The change in judgment has everything to do with the changed view of what drove the impeachment process of r868— JEREMY RABKIN is a professor of government at Cornell University...
...The American Spectator • February 1999 51...
...Compromise in the Senate is unlikely to efface the initial impressions...
...But precisely because the Democratic Party has been such a heterogeneous coalition, it has, historically, been ideologically diverse...
...This may have started as calculated demagoguery but it carried a lot of Democrats along, as the perceived self-righteousness of Republicans triggered the fears and resentments of Democratic constituencies...
...Against all expectations—but by what now seems a kind of ineluctable destiny—Clinton has brought the country to a defining moment...
...Liberals were quick to note the Judiciary Committee Republicans were all white and Christian...
...The right has been stirred by the notion that natural law or God's law or firmly established tradition —at any rate, something—must stand above mere political will...
...But Democrats were carried away with their own partisan impulses in rallying to the president's defense...
...But the left is outraged by hypocrisy in a way that the right is not...
...Today's leading constitutional history (The American Constitution, by Alfred Kelly, Winfred Harbison and Herman Belz) sums up the very different view of contemporary scholarship: "In Johnson's case it seems clear that while political passions ran deep—on both sides of the question—they did not banish a concern for fair procedure...
...Surely this was more than politics...
...They said it was all about sex because sex is one of the mobilizing causes of the left...
...For the real stake is not what Congress does now but how the country looks back on it...
...From the trials of the Black Panthers and the Chicago 7 in the 6o's, to the trials of Alger Hiss and the Rosenbergs in the 4o's, back to the trial of Sacco and Vanzetti in the 20's, and of Joe Hill and the Wobblies before the First World War—celebrated trials have been made into causes by the left...
...In the 1920's, northern Republicans needed the help of Southern Democrats in order to pass Prohibition...
...The same Congress which sought to remove President Johnson also added the Fourteenth Amendment to the Constitution and did both for the same reasons...
...How the public looks back on the Clinton impeachment will color its reaction to the other stands of each party for years to come...
...Democrats risk going down as apologists for scoundrels —not only the Clintons but their demagogic defenders, from Maxine Waters to Larry Flynt...
...At the time, Republicans were furious at the twelve senators who broke ranks with their party to vote for Johnson's acquittal...
...The Republicans were vulnerable to charges of hypocrisy or humbug when they focused on the Lewinsky scandal and framed the debate as a simple test of whether the president is above the law...
...Clearly, President Clinton is determined to have the current generation of Republicans go down in history as another bunch of vindictive zealots, equally obsessed with their project of moral reconstruction, and equally heedless of the damage they do to the Constitution and the country...
...If district attorneys have discretion, the House of Representatives must have some sort of parallel discretion in deciding whether to invoke the extreme remedy of impeachment for any particular "high crime" or "misdemeanor...
...Before the impeachment vote, they kept insisting that, while Clinton should not be impeached, he should of course be condemned and censured for disgracing his office and lying under oath...
...Whoever defends authority must learn to live with some degree of hypocrisy...
...The Civil Rights legislation of the 1960's, opposed by almost all Southern Democrats, could not have been passed without strong Republican support...
...It was a challenge that Republicans just could not stand...
...In this crisis, as so often before, Democrats have fed on the fears and resentments of minorities...
...As William Kristol summed it up in Newsweek on the eve of the impeachment vote: "Bill Clinton has acted for the past year on his deepest beliefs: that law is merely politics, that the truth is merely spin, that an oath is merely rhetoric, that justice is merely power...
...The left has always responded to the cry that authority is invoking the pretentious robes of the law to do the work of the powerful...
...The failed impeachment of Johnson was flaunted as proof that the "Radical Republicans" were too obsessed with their projects and simply too partisan in their methods for the country to accept...
...Yet in the mid-1930's, Andrew McLaughlin's Constitutional History, the leading college text of that era, called Johnson's trial "the most regrettable and shameful exhibition of personal spite and ruthless partisanship in American history...
...Of course it is partisan, but in a way that parties normally shun with every instinct of politics...
...No sooner had the impeachment vote been taken, than a hundred House Democrats rushed to the White House to applaud the president when he insisted that he had only committed private sins and that the impeachment vote was therefore a mere partisan exercise...
...0 f course the law can be corrupted and perverted —along with religion and patriotism and other imposing claims of authority...
...I cannot think of a trial denounced in this way by conservatives...
...Commentators who described it as a continuation of the culture war were closer to the mark...
...Yet from the outset, the president's most faithful defenders simply would not admit that Clinton had transgressed some serious boundary...
...In the Clinton matter, however, the two parties have become totally identified with the diverging instincts of left and right...
...But Clinton refused to accept that Judge Starr could rightly sit in judgment on him...
...Democrats have always been the party of the outsiders, of the new immigrants, and of the defeated South, joined by their common resentments of Yankee smugness...
...The left, by contrast, has always exalted political will and distrusted talk about higher law as a deliberate fraud...
...Otherwise, it risks being mocked by events of the moment, such as the impeachment of the president...
Vol. 32 • February 1999 • No. 2
