The high court "battle" began back in 1935.
BY DANIEL HENNINGER
Friday, July 15, 2005 12:01 a.m. EDT
"Yes, we should be knowing their judicial philosophy, we should be knowing their legal form of reasoning. There are lots of questions that are legitimate. . . . What's your view on the right to privacy, which was established in Griswold 40 years ago?"
Sen. Charles Schumer, "Meet the Press"
I recently attended a legal symposium in Philadelphia organized by Philip K. Howard of Common Good. It ended a day or so before Justice Sandra Day O'Connor announced her resignation, followed by much praise for her 24 years on the Court. At the symposium, Mr. Howard's organization released a poll done for it by Harris, which found that only 16% of Americans expect the legal system to protect them against baseless claims.
Setting aside for a moment the public's view of what Sen. Schumer calls "the legal form of reasoning," the Common Good meeting brought its participants literally shoulder to shoulder with the men who made the original, but now expanded, Constitution. In a room at Philadelphia's new National Constitutional Center is a mesmerizing, if eerie, life-sized tableau in bronze of the participants at the Constitutional Convention in 1787. One can walk among and bump into the diminutive Hamilton and Madison, a seated Franklin, the towering George Washington, Jefferson (in Paris at the time), Gouverneur Morris, George Mason and the other Founders.
Would that it were possible to summon Madison's shade before Sen. Schumer during the coming advise, consent and demolition hearings to offer his thoughts, in retrospect, on the right to privacy created in Griswold v. Connecticut 178 years after his signature dried on Constitution 1.0? Why, Mr. Madison, didn't an explicit "right to privacy" make your original cut?
People for the American Way wasn't at the Common Good symposium, but its Web site is one-stop shopping for substantive legal ranting against "hard right ideologues." The site usefully identifies the moment in U.S. history when this fight began. The "battle" is over "the hard-won rights and social justice achievements of the past 70 years." So the opening bell was in 1935.
The subject of Mr. Howard's symposium was not directly what is on Sen. Schumer's mind just now but instead the explosion of lawsuits. But several of the scholars invited felt obliged to explain how our legal history progressed from what some might consider simpler times to now, when every activity in American life is contestable. This history bears directly on the battle soon to ensue between Republicans and Democrats on the Senate Judiciary Committee. It is about the basic ideas that bind a people to their laws.
Prof. Edward Rubin, just appointed dean of Vanderbilt's Law School, described how in the 19th century and into the 20th, our law--reflecting the intellectual currents of the time--gradually passed from an "old system of moral example" and forward to one integrated with an enlarged "administrative state." For centuries before, a good society was the product almost entirely of individuals learning by habit from handed-down moral example to behave properly inside their communities. The law back then stepped into social affairs only to arbitrate and ultimately reinforce this familiar and popularly held system of moral habit. Around the turn of the last century, intellectual thought, notably sociology, began to examine the structure of American society.
The short version of this gestation, which came to life around 1935, is that problems like urban poverty were said to exist on such a scale that only large administrative agencies backed by the resources and authority of the federal government could ameliorate them. Ever since, public agencies--the government--have defined what is, and isn't, acceptably moral or just in American life. Individually centered morality and even churches had been demoted.
From 1935 till today, the dominant view of the law's purpose, and the Supreme Court's role, has been mainly as the instrument of an administrative public good, a k a morality. Social analysis identifies flaws in the system, often reflected in measured disparities of one sort or another (in school systems, universities, hiring). Impatient with slow legislative institutions, a lawsuit is filed on behalf of a broad social class or category, and ultimately the Supreme Court's job is to fold the newly identified class into the reprogrammable Constitution. U.S. administrative agencies, constantly expanded since 1935, enforce the protection, with lawsuits if necessary.
One may argue that this legalistic social philosophy was defensible in the Depression or in 1965 to stop segregation. But is it appropriate in 2005? Is it possible for the law and Supreme Court to discern flaws and "do good" on such a grand social canvas in perpetuity? Proponents like Sen. Schumer not only answer yes, but assert that Justice O'Connor is the perfect vessel--a pragmatist who called them as she saw them, unfettered by the constraints of any recognized set of legal principles or social philosophy.
At the Common Good conference, Philip Howard countered that the net result in our time is legislative and legal "incoherence," which is causing the general public to lose faith in the law. I would argue further that many Americans have had no idea that since 1935, dominant legal thinking has pretty much regarded the country's originating notions of a moral order grounded in the individual as largely irrelevant to a modernist rule of law, which purports larger moral goals through the administrative process. Thus, the alienated anger over losses involving matters like school prayer or "reproductive rights.
After enough such losses, though, a great many people came to notice the transformation begun in 1935. Now in 2005, there is a politically potent constituency, which believes that this 70-year-old legal-administrative state is smothering them--as individuals, as communities and as a society. The President who says he'd nominate "another Scalia or Thomas" is one of them.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.
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