Sir Henry Maine made the point that, looking back, we are amazed at the blindness of the privileged classes in France to the approach of the Revolution that was to overwhelm them. Yet Maine finds “the blindness of the French nobility and clergy eminently pardonable. The Monarchy . . . appeared to have roots deeper in the past than any existing European institution.” In his own place and time, men looked upon popular government and the democratic principle as destined to last forever. Maine asked whether the confidence of the French upper classes just before the Revolution “conveys a caution to other generations than theirs.” In the following century, of course, nations that had adopted the democratic principle, in whole or in part, rejected it for totalitarian systems.
Yet we seem at least as sanguine about the prospects for democratic government as were Maine’s contemporaries. The democratic principle is in rhetorical ascendancy everywhere, and yet it is worth asking whether in actuality, as a matter of practice rather than declamation, it is not in retreat, particularly in what had been its strongest bastion, the United States. Unlike the sudden cataclysm that overtook the French monarchy, ours appears to be a slow crisis, a hollowing out of democracy from within, that gives ample warning of the unhappy condition toward which matters tend. Modern liberalism is fundamentally at odds with democratic government because it demands results that ordinary people would not freely choose. Liberals must govern, therefore, through institutions that are largely insulated from the popular will.
In his First Inaugural Address, Abraham Lincoln asserted: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court#…#the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln was thinking of Dred Scott, the infamous decision that created a constitutional right, good against the Federal Government, to own slaves. Today, however, his observation is even more pertinent, as we have resigned into the hands of the federal judiciary ever more vital questions affecting the whole people. There seems no possibility of retrieving democratic government from the grasp of the Supreme Court, which now governs us in the name of the Constitution in ways not remotely contemplated by the framers and ratifiers of that Constitution. Professor Lino Graglia concludes:
The hope that this situation can be changed by shifts in personnel on the Court has been shown to be futile. Eleven consecutive appointments to the Court by Republican Presidents pledged to change the Court’s direction have not resulted in the overruling of a single major ACLU victory or even halting the flow of ACLU victories.#…#The Court will continue to serve as the mirror, mouthpiece, and enacting arm of a cultural elite that is radically alienated from and to the left of the ordinary citizen. . . .
The only practical way of reining in the Supreme Court is a constitutional amendment making its rulings subject to democratic review. As matters now stand, the Court’s assumption of complete governing power is intolerable, and yet, absent a constitutional amendment, we have no way of refusing to tolerate it.
The question is not only one of the illegitimacy of the Court’s performance in usurping powers that belong to the people and their elected representatives. The judiciary is slowly disintegrating the basis for our social unity.
We too often forget that the liberties guaranteed by our Constitution were not based on legalisms or moral theorizing but upon the historical experience of being governed by the British Crown. Our Constitution, and most particularly our Bill of Rights, were designed to prevent the Federal Government from becoming as oppressive as British rule was perceived to be. But as the historical meaning of the Constitution fades from memory, or is regarded as irrelevant, its guarantees begin to change. We have a student who can say, with no sense of incongruity, that speech should not be free unless it is also correct.
As it departs from the constitutional text and history that give our rights life, rootedness, and meaning, and substitutes abstractions reflecting modern liberalism’s agenda, the Supreme Court brings itself and the entire concept of the rule of law into disrepute. It expends a dwindling moral capital and weakens both political authority and the possibility of a common culture. The increasing legalization of our culture is a sign of the fracturing of that culture, the continuing disappearance of the vestiges of unity. Professor John Gray, after discussing the fragmentation of British culture, noted:
We may see the same somber development occurring on a vast scale in the United States, which appears to be sliding inexorably away from being a civil society whose institutions express a common cultural inheritance to being an enfeebled polity whose institutions are captured by a host of warring minorities, having in common only the dwindling capital of an unquestioned legalism to sustain them. . . . The idea that political authority could ever be solely or mainly formal or abstract arose in times when a common cultural identity could be taken for granted. For . . . the framers of the Declaration of Independence, that common cultural identity was that of European Christendom. In so far as this cultural identity is depleted or fragmented, political authority will be attenuated.
As the courts recklessly squander our common cultural inheritance in the names of radical individualism and radical egalitarianism, they necessarily offer themselves and their authority over law as the only institution capable of holding our turbulent society together. But that task will prove beyond the capabilities of the courts. It takes more than legalisms, abstractions, and judicial diktats to hold a community together. Indeed, by its emphasis on individual and group rights — rights it had invented — against those of the larger community, the Court denigrates the idea that there is value in community, the idea that the collectivity should exert a centripetal force. What the Court is doing is forcing the libertarian-egalitarian philosophy of our cultural elites upon the rest of us.
We head toward constitutional nihilism. No one knows what will happen if Americans see the judiciary for what it is, an organ of power without legitimacy either in democratic theory or in the Constitution. Perhaps we will simply accept the fact that the courts are our governing bodies. Perhaps, though it is highly unlikely, we will amend the Constitution to reassert ultimate democratic control. There does not seem to be a third choice except civil disobedience by legislatures and executives. The most likely outcome seems, at the moment, to be passive acceptance of the ukases of the Court.
The other institution that may seem to hold the prospect of unifying a multi-ethnic and increasingly contentious society is the federal bureaucracies. Bureaucracies tend to be leveling institutions. A strong egalitarian philosophy implies extensive regulation of individuals by law (because equality of condition does not come about naturally) and a depreciation of the value of democratic processes.
If equality is the ultimate and most profound political good, there is really very little to vote about. Only a society with a profusion of competing values, all regarded as legitimate, needs to vote. In such a society, there being no way of saying that one outcome is a priori better than another, it is the legitimacy of the process that validates the result; not, as in a thoroughly egalitarian society, the morality of the result that validates the process. There is thus a built-in tension between the ideal of equality of condition and the ideal of democracy. That tension is not merely philosophical, which is how it has just been stated, but exists as well at the level of practical governance.
A modern society whose predominant value is equality necessarily displays three related symptoms: a strong sense of guilt; a consequent feeling of personal insecurity; and, as a direct result of the first two, the spread of an oppressive and excessive legalism throughout the social body. A society whose morality is egalitarian but whose structure is inevitably hierarchical, a society that feels there are unjustifiable inequalities throughout its social, political, and economic order, is a society that feels guilty. It may seem odd that people who understand that a complex, vital society is necessarily hierarchical can simultaneously feel that the existence of hierarchies is somehow immoral.
Yet it is plain that many of us do feel that way. Bad social conscience is taught to the young as dogma. Randall Jarrell wrote of a fictional but not untypical New England college that could have carved on an administration building: Ye shall know the truth, and the truth shall make you feel guilty. In certain academic circles, with which I was once familiar, a sense of guilt became as essential to good standing as proper manners used to be.
It is also true that at a time when we have achieved greater personal security than ever before in recorded history, we have become increasingly anxious. The demand that all should be insulated from risk is an egalitarian response to the prospect of varying individual fortunes.
Security has become a religion. We demand it not only from government but from schools and employers, we demand it not only from major catastrophe but from minor inconvenience; not only, to take health plans as an example, from the financial disaster of major surgery and prolonged hospitalization but also from having to pay for a medical checkup — and we demand it as a right. David Riesman’s picture of university students some forty years ago seems a passingly accurate description of our society now. Riesman had his students read about the cultures of the Pueblo and Kwakiutl Indians, and asked which most closely resembled the culture of the United States. The Pueblo were described as a peaceable, cooperative, relatively unemotional society, in which no one wishes to be thought a great man and everyone wishes to be thought a good fellow. Kwakiutl society, on the other hand, was pictured as intensely rivalrous, marked by conspicuous consumption, competition for status, and power drives. The great majority of the students questioned saw American society as essentially Kwakiutl.
Only modern liberalism, which was on the way when Riesman’s students responded, could persuade anyone that our relatively safe and cooperative society is actually egomaniacal and ruthless. The students made their assessment before the violence of the underclass had exploded. People who regard mainstream American culture as comparable to Kwakiutl are obviously highly insecure.
A society whose members feel insecure and guilty seeks the antidotes of security and expiation by trying to legislate equality. Our legislatures, our bureaucracies, and our courts are attempting to guarantee every right, major or minor or merely symbolic, that people think they ought ideally to possess. There is no reason to suppose that we will achieve equality of condition. We will not. In saying that we are necessarily a hierarchical society, I mean simply to state the obvious: any big, complex society must depend upon differential rewards of some kind to operate effectively. There is, as has been remarked, a “natural tyranny of the bell-shaped curve” in the distribution of the world’s goods. Because of the inefficiency the effort to achieve equality imposes, it may, as in Communist countries, result in everybody having less, but what there is will still be distributed unequally.
But the enormous profusion of egalitarian regulations is incompatible with democratic processes in still another way. As government spreads, bureaucracies get beyond the power of the elected representatives to control. Government is too big, too complicated, there are too many decisions continually to be made. The staffs of both the President and Congress have been so enlarged in the effort to cope with the workload that both institutions have become bureaucratized.
Democratic processes become increasingly irrelevant. And there is increasing acceptance of this condition, in part because egalitarians do not care greatly about process. That is why they prefer an activist Supreme Court as a means of displacing democratic choice by moral principle. That was the reason for the Equal Rights Amendment, which provided that it should be primarily the function of the judiciary to define and enforce equality between the sexes. The amendment, we were assured, did not mean that no distinctions whatever may be made between men and women, that women must, for instance, be conscripted for combat duty or that unisex bathrooms are required. Yet it was proposed that the Supreme Court rather than Congress or the state legislatures make the necessary detailed and sensitive political choices to write a gender code for the nation. In that sense, the amendment represented less a revolution in sexual equality than a revolution in our attitudes about constitutional methods
This episode is characteristic. When a controversial proposition is put to the nation for an up-or-down vote, an effective political leader — like Phyllis Schlafly, in the case of the ERA — can rally the electorate and their representatives to stop a departure from democratic governance. But the issue is rarely put that way. There was nothing Mrs. Schlafly or anyone else could do to stop the judicial enactment of the ERA (through new interpretations of the Equal Protection clause) or the judicial approval of homosexual marriages. The political rejection of the ERA by the American people hardly seems to have mattered to how we are governed in the matter. Still less is it possible to mount effective opposition across the board to myriad bureaucratic usurpations of democratic control. With scores of agencies all churning out regulations, it is apparent that the bureaucracies make most of the law by which we are governed. Regulations issued in 1994 took up nearly 65,000 pages in the Federal Register; in 1995, the number was 67,518.
It is true that Congress can alter the decisions made by bureaucracies, but that is by no means an adequate answer. So much law is made by bureaucracies that no legislature can focus on more than a small fraction of the choices made. Moreover, the bureaucracies develop rather small but intense constituencies, which often have more political influence than an electorate aggrieved by the total amount of regulation but rarely unified in opposition to any one regulation.
The prospect, then, is the increasing irrelevance of democratic government. What replaces it is bureaucratic and judicial government, which may be benign and well intentioned, and may respond somewhat to popular desires, though by no means always, but cannot by definition be democratic.
Tocqueville, it will be remembered, warned of a soft form of despotism that would suffuse society with small complicated rules that would soften and guide the will of man to acceptance of a “servitude of the regular, quiet, and gentle kind.” That, he saw, was not at all incompatible with the sovereignty of the people; it is just that sovereignty, the ability to elect representatives from time to time, becomes less and less important.
It does not seem far-fetched to think there may be a connection between the rise of egalitarian bureaucracies, the proliferation of “small complicated rules,” our sense of guilt, the paramountcy of security among our domestic gods, and the symptoms of enervation and loss of self-confidence that seem to afflict all Western democracies, in domestic matters as well as international. That there is a decline in self-confidence seems plain. It takes confidence in your values to punish for crime, and yet punishment rates in the United States and all of the Western world have declined even as crime rates soared. It takes assurance to enforce community standards of behavior, but, though most of us do not like the fact, pornography has become a national plague.
If there is a connection, as seems highly likely, then something very ominous and perhaps irreversible is happening to us as a people and as a community. It is disturbing in many respects but in none more so than in relation to the prospects for democratic government. A people without energy and self-confidence runs a greater risk of tyranny, albeit of the soft variety.
This does not necessarily suggest that the relatively mild and well-intentioned, though insistent, reign of the bureaucracies will be stable. If it is true that bureaucratic egalitarianism suffocates the spirit and weakens the morale and self-confidence of the community while it saps the strength of intermediate institutions, then it leaves society as an aggregation of individual particles ranged against the state. That kind of society — anxious, insecure, irritated, bored, the people an undifferentiated mass — may perhaps more easily be swept by mass movements joined to populist rhetoric and transcendental principles. Such movements create excitement and a sense of purpose; they promise the restoration of the lost but longed-for sense of community. In a word, a society so reduced is more vulnerable to one or another form of authoritarianism.
Perversely enough, the spread of secondary and higher education, along with the extension of the suffrage, has reinforced these trends. The complexity of institutions and relationships in our society was never well understood, and the freedom and power of those institutions and relationships rested in no small measure on an unreasoned, awed acceptance of them. The spread of education, particularly university education, has served to decrease that awe without increasing, in the same proportions, the reality of understanding. We are left unhappily in between; respect founded in ignorance is lost but is not fully replaced with respect founded in sophistication.
Democratic government requires something that democratic government has badly damaged in the past half century and continues to damage today — civil society. By that is meant the institutions that serve public (as well as private) purposes but are not government — neighborhoods, families, churches, and voluntary associations, to name the ones discussed by Peter L. Berger and Richard John Neuhaus in their influential pamphlet To Empower People. What we are talking about is institutions that shape and maintain values; the bridge club is not on the list. These are also institutions that assist people who need assistance, giving charity or advice or consolation or companionship.
One of the most important aspects of these institutions — Berger and Neuhaus call them “mediating structures”; Robert Nisbet calls them ‘‘intermediate associations” — is that they stand as buffers between the individual and the state. They do that, in part, by performing functions for individuals that the state would otherwise perform. The difficulty is that, ever since the New Deal, the state has increasingly ousted the institutions of civil society and taken over their functions or controlled them.
It is proposed to attempt to restore these intermediate institutions, but it may be quite difficult to do so. In the first place, if government attempts the restoration, the result is likely to be more bureaucratic interference and hence damage to civil society. In the second place, churches are among the most important of the intermediate institutions and should lead in the restoration of other institutions and in the maintenance of values. The difficulty is that if government were to try to cooperate with or assist churches in their efforts, the courts, which have made a mess of the religion clauses of the Constitution, might well intervene to stop the effort.
Modern liberals will continue to try to govern through the judiciary and the bureaucracies. To the degree they have already succeeded, democratic government has not survived. As the behavior of modern liberal politicians, the courts, and the bureaucrats demonstrates, they have no intention of relinquishing any of their power to the popular will.
This article is excerpted from Slouching towards Gomorrah by Judge Robert H. Bork. Copyright ©1996 by Robert H. Bork. Published by arrangement with Regan Books, an imprint of HarperCollins Publishers, Inc.
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