The Nation's Pulse
Nelson, Frederic
As Justice Holmes once put it, a man's rights often depend upon his estimating correctly what a jury will later decide. And a good lawyer today would add: upon his estimating correctly what five...
...Since the total sum of possible libit is this preference that will guide their erty cannot be increased by distributing it choice among potential principles of jus- unequally, there is no reason for the parties rice...
...The crucial test of a theory of justice for Professor Rawls is the "capacity of its principles to accomodate our firmest convictions...
...The Rawlsian original position is simply a construct tailored to fit the view of justice he wishes to affirm: '~1~e first task of a theory of justice is to define the initial situation so that the principles that result express the correct conception of jusany end...
...This hugely tickles the cannon king: '~'hat...
...The job of filling the void necessarily must devolve Upon the men of the bar, schooled in law and history...
...I think, when Chief Justice John Marshall asserted the right to declare acts of Congress unconstitutional, some journalist should have asked instantly who would declare acts of the judiciary unconstitutional...
...Lawyers are accustomed to winning some and losing some...
...Nay, even more likely, because a The Alternative May 1974 9 senator is more conspicuously visible...
...The dissenters are seldom heard...
...But I can pass along one certain observation be by a great journalist, H.L...
...If this is by no means the case...
...And lawyers will have to tell the journalists they can't have their way all the way, all the time, either...
...You're a born journalist...
...This was the case because senators were not to be e l e ~ by popular vote, but "appointed" by state legislatures...
...Frequently, lawyers must tell clients about the limits on their legal rights...
...V] B ok R iew Rawls and Redistribu.tion I I I JOHN RAWLS' A Theory of Justice* is a book about political justice written by a professor of philosophy, but it is not a work of political philosophy...
...This is surely one reason why common sense often gets a better reception in the House than in the Senate...
...Remember that great scene from Bernard Shaw's Major Barbara...
...Thus, by making persons in the original position ignorant of their own conception of the good, but eager to "win for themselves the highest index of primary social goods," Rawls does not succeed in constructing a doctrine of justice that is prior to or impartial with respect to conceptions of the good, He merely postulates in a roundabout manner a conception of the good that calls for the maximization of individual liberty and wealth...
...But too few of our journalists have any comprehension of this historic tradition and process...
...No capacity for business, no knowledge of law, no sympathy with art, no pretension to philosophy, only a simple knowledge of the secret that has puzzled all the philosophers, bamed all the lawyers, muddled all the men of business, and ruined most of the artists: the secret of right and wrong...
...And legislators know full well they can never write rules to cover every case...
...Stephen answers: '~I know the difference between right and wrong...
...It is simply not possible to define the goodness of anything as a means without reference to the ends centive of individuals to engage in economically productive activity, and thus would result in a lesser total amount of economic goods than would be secured by "permitting" an unequal distribution...
...These two traditional aims of liberalism --the maximization of individual liberty and wealth--are at the core of Rawls' now famous two principles of justice: _9 1) "Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others...
...This last condition, which turns out to be crucial for Rawls' whole enterprise, at first appears quite puzzling...
...Mencken: '~The American form of government is the most entertaining form of government ever devised by man...
...When we watch the performance of such reporter-lawyers as Fred Graham and Clark Mollenhoff, we cannot help but be inspired to hope for this trend to grow...
...The principles of justice, according to Rawls, are those that would be chosen in the original position by ratiovictions...
...The Philadelphia Framers recognized the indistinct boundary when they deposited "the judicial power" and "the legislative power" into separate laps, without any effort to define the limits of judicial review and legislative supremacy...
...One need only think of the many moral and religious teachings which have Stressed the harmful effects of wealth...
...Besides, the senators, being members of the smaller body, would be less likely than the House to "partake of the infirmities of their constituents...
...They had experienced under the British Crown the consequences of unregulated executive power and were determined not to see such an experience repeated...
...A scattering of delegates favored popular election of senators, but the sense of the ~ convention was pretty well summarized by Eldridge Gerry of Massachusetts who thought "the commercial and moneyed interests would be more secure in the hands of the State legislatures than of the peoples at large . . . . The people are for paper money when the legislatures are against it...
...That is, they are considered to be desirable regardless of an individual's particular conception of the good, for they serve as necessary means to the achievement of almost terms of which a "minimal" or a '~moderate" amount of wealth might be preferable to an "excessive" amount...
...His own conception of justice is based upon "principles that free and rational persons concernedto further their own interest would accept in an initial position Of equality as defimng the fundamental terms of their association...
...But journalists are accustomed to being right always...
...I cannot give you stone tablets telling you the difference between right and wrong...
...Therefore if the President is to be impeached for '%igh crimes and misdemeanors," as appoars to me unlikely, his senatorial judges will be a group quite different from the incorruptible patricians envisioned by the Founding Fathers...
...And juries and jadges must decide these cases and controversies "in the totality of circumstances," to quote one pregnant legalism...
...These considerations bulked large in the debate in the Philadelphia convention of 1787, and in the later campaign to persuade the states to adopt the new Constitution...
...The media are filled with ex parte self-assertion and adulation...
...amount of the so-called primary goods...
...As Alexander Hamilton put it in the Federal/st, "the difficulty of placing it [the power of impeachment] in a government resting entirely on the basis of periodical elections will be readily perceived when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the object of scrutiny...
...On the other hand, they knew a great deal about mob violence and the fickleness of public opinion...
...Let's get more journalists into the law schools, and more lawyers into the press box and on camera...
...In every case, some lawyers are losers...
...To argue that the maximization of individual wealth is desirable is implicitly to argue for a certain conception of the good (if only that the good is whatever the passions of an individual lead him to desire) and to reject other conceptions of the good (those that proclaim a natural or supernatural end for man in in a very different kind of enterprise--the ~or social status...
...For it is not Professor Rawls is engaged in a kind of true that all conceptions of the good a r e intellectual sleight of hand, at least he ac- furthered by the possession of a greater companies it with a candid admission of exactly what he is up to...
...to consent to anything but an equal distri_9 Now Rawls appears to regard this "thin" bution...
...Rawls attempts to meet this difficulty by means of the notion of "primary social goods," or what he later calls (perhaps more aptly than he intend:s) the %bin" theory of the good...
...So I would offer one small proposal to advance the cause of the law...
...I would suggest that lawyers arrange with the law schools to swing the doors wide for journalists to enter as special students, to take such courses as legal method, practice and procedure, evidence, and constitutional law...
...Therefore, Rawls argues, persons in the originalposition would consent to inequalities in the distribution of wealth provided they improved the economic position of the 10 The Alternative May 1974...
...You see how far we've come in the fifty years since Holmes spoke in transferring power from juries to judges...
...And a good lawyer today would add: upon his estimating correctly what five justices will later agree on...
...Pinckney predicted that, if a president should "oppose a favorite iaw, the two houses will combine ' against him and under the influence of heat and faction, throw him out of office": all this before the press had become more than an occasional nuisance with power to create "heat and faction" on its own...
...And when journalists assert the right to refuse subtxmnas, some lawyer must ask who will call them to account...
...For he does not attempt to deduce the leainterests...
...The political philosopher seeks to discover what true principles of justice may lie behind men's conflicting opinions of what is just and unjust...
...Not surprisingly, his own theory meets this test--that is, it very nicely accommodates Professor Rawls' firmest contune in the distribution of natural assets and abilities, his intelligence and strength, and the like...
...This stipulates that, although '~,nowledge Of the general facts about human society" is available, "no one knows hisplace in society, his class position for which it is to be used...
...Where should the power to impeach a chief executive for ~ligh crimes and ~ misdemeanors" reside...
...Today a senator, instead of being the sublime elder statesman envisaged by the Founding Fathers--beyond the reach of popular clamor and free to judge controversial issues on their m e r i t s l i s as likely to be a demagogue as his junior in the House...
...A senator of the variety decreed in 1787 could vote for or against conviction, unmoved by cries of ~Sell-Out...
...And of course when the President asserts such a right, the same question must be raised and resolved...
...he cackles...
...Needless to say, I believe in checks and balances...
...But a post-1913 senator--I don't know...
...He is constantly under pressure from every sort of vocative group and interest, badgered by the media from p o l l t o poll, whereas a member of the House can usually manage to keep his ideology to himself because many people in his own district do not even know his name...
...What Rawls calls the "initial [or original] position" appears to be equivalent to the %tate of nature" in older theories of the social contract, but there is an important difference...
...A popularly elected senator is likely to consult the most recent Gallup Poll or the bumpersticker count before making up his mind on anything, and in a matter so certain to tilt the polls off balance as a trial of Nixon, sticking to the evidence would be difficult...
...Some of the delegates thought impeachment should be a function of the courts...
...and whether his theory of justice provides, as he claims, %he most appropriate moral basis for a democratic society...
...The first principle follows rather obviously from the equal conditions prevailtures of the original position from any historical or metaphysical reflections upon the nature of man and his place in the universe...
...Harvard University Press, 1972, paper $3.95...
...nor does he know his forattempt to formulate a set of principles that will support and systematize a given body of moral and political opinions...
...nal persons concerned to further their own more important questions: whether his opinions about the just and the unjust are sound ones...
...Professor Rawls purports to follow the tradition of thinkers who rested the foundation of political society on a social contract...
...2) "Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity...
...The solution finally adopted was believed to have avoided the danger that the leaders of popular factionswould proceed against a president for political reasons...
...Stephen, I've found your profession for you...
...Few pre1913 senators lived up to the billing of a senator in the 1787 convention, but they were at least free of the problems which beset their post-1913 successors...
...In regard to wealth, however, the theory of the good as essentially noncon- situation is different...
...on the one hand or '~roady to the media...
...The Nation's Pulse by Frederic Nelson Some Thoughts on Impeachment THE MAKERS OF the American Constitution took impeachment very seriously...
...These primary goods which encompass rights and liberties, opportunities and powers, income and wealth are defined as "things which it is supposed a rational man wants whatever else he wants...
...Thus selected, the Senate was expect~ to be, in the words of Madison, a small body of men able to "proceed with more coolness, more system and with more wisdom than the popular branch...
...The Boston Tea Party was a memory and Shays Rebellion was a contemporary event...
...That disposed of the popularly elect~ House of Representatives as the judges of the accused...
...Journalistic partisanship in asserting our own rights results in large areas of public ignorance and confusion...
...John Dickinson of Delaware opined that election of senators by state legislatures would "draw forth the first characters, whether as to family or talent...
...Professor Rawls, by his own testimony, is engaged J i i The device that Rawls employs to insure that human beings in the equal conditions of the original position will arrive at the "correct" conception of justice is the "veil of ignorance...
...Therefore, it is assumed that per- ing in the original position and the desire sons in the original position will p r e f e r of each individual to maximize his own more rather than less of these goods---and liberty...
...Trial by the Supreme Court was voted down on the ground that the Court might be in the position of reviewing its own judgments in case a convicted chief executive was later tried for other offepses...
...on the other...
...The fact remains: rights must be asserted and defended in specific cases, and circumstances, and against other parties asserting conflicting rights and values...
...Madison agreed that the senators "should come from and represent wealth...
...But this, of course, only begs some...
...The Senate, argued Hamilton, was a body "sufficiently dignified and sufficiently independent" and "confident enough of its own situation" to be able to preserve a judicial attitude...
...At 24, too...
...Nor, again, does anyone know his conception of the good...
...The Seventeenth Amendment, adopted in 1913, decreeing that senators should be chosen by popular vote, changed the picture radically...
...But if the veil of ignorance conceals from men any knowledge of their own conception of the good, how can they have any basis for choosing which principles would best further their interests...
...This means there will necessarilybe perpetual static between the press and the bar...
...The billionaire cannon king asks his freshly graduated son how he plans to make a living, since he repudiates the cannon business: '~Is there anything you know or care for...
...Indeed, if the wise men of 1787 had foreseen what was to happen to the Senate, they might well have thought up some other machinery for the impeachment of public officials, including presidents, because direct election of senators has brought about the very conditions which they took such pains to prevent...
...James Madison of Virginia and Charles Pinckney of South Carolina thought well of this idea, fearing that impeachraent by the legislature, more widely advocated, would make the executive overdependent on the legislature...
...A purely equal distroversial and hence unexceptionable, but tribution of wealth would reduce the intice from a philosophical point of view...
Vol. 7 • May 1974 • No. 8
