The New York Review of Books

But this objection is itself too glib, because it ignores the special character of disputes about individual moral rights as distinct from other kinds of political disputes. Different institutions do have different constituencies when, for example, labor or trade or welfare issues are involved, and the nation often divides sectionally on such issues. But this is not generally the case when individual constitutional rights, like the rights of accused criminals, are at issue. It has been typical of these disputes that the interests of those in political control of the various institutions of the government have been both homogeneous and hostile. Indeed that is why political theorists have conceived of constitutional rights as rights against the “state” or the “majority” as such, rather than against any particular body or branch of government.

The early segregation cases are perhaps exceptions to that generality, for one might argue that the only people who wanted de jure segregation were white Southerners. But the fact remains that the national Congress had not in fact checked segregation, either because it believed it did not have the legal power to do so or because it did not want to; in either case the example hardly argues that the political process provides an effective check on even local violations of the rights of politically ineffective minorities. In the dispute over busing, moreover, the white majority mindful of its own interests has proved to be both national and powerful. And of course decisions of the national government, like executive decisions to wage war or congressional attempts to define proper police policy, as in the Crime Control Act of 1968, are subject to no review if not court review.

It does seem fair to say, therefore, that the argument from democracy asks that those in political power be invited to be the sole judge of their own decisions, to see whether they have the right to do what they have decided they want to do. That is not a final proof that a policy of judicial activism is superior to the policy of deference. Judicial activism involves risks of tyranny; certainly in the stark and simple form I set out. It might even be shown that these risks override the unfairness of asking the majority to be judge in its own cause. But the point does undermine the argument that the majority, in fairness, must be allowed to decide the limits of its own power.

We must therefore turn to the other continuation of the argument from democracy, which holds that democratic institutions, like legislatures, are likely to reach sounder results about the moral rights of individuals than would courts. In 1969 Professor Alexander Bickel of the Yale Law School delivered his Holmes Lectures at Harvard and argued for the policy of judicial restraint in a novel and ingenious way. He allowed himself to suppose, for purposes of argument, that the Warren Court’s policy of activism could be justified if in fact it produced desirable results.³ He appeared, therefore, to be testing the policy of activism on its own grounds, because he took activism to be precisely the claim that the courts have the moral right to improve the future, whatever legal theory may say. Learned Hand and other opponents of activism had challenged that claim. Bickel accepted it, at least provisionally, but he argued that activism fails its own test.

The future that the Warren Court sought has already begun not to work, Bickel said. The philosophy of racial integration it adopted was too crude, for example, and has already been rejected by the more imaginative leaders of the black community. Its thesis of simple and radical equality has proved unworkable in many other ways as well; its simple formula of one-man-one-vote for passing on the fairness of election districting, for instance, has produced neither sense nor fairness.

Why should a radical Court that aims at improving society fail even on its own terms? Bickel has this answer: Courts, including the Supreme Court, must decide blocks of cases on principle, rather than responding in a piecemeal way to a shifting set of political pressures. They must do so not simply because their institutional morality requires it, but because their institutional structure provides no means by which they might gauge political forces even if they wanted to. But government by principle is an inefficient and in the long run fatal form of government, no matter how able and honest the statesmen who try to administer it. For there is a limit to the complexity that any principle can contain and remain a recognizable principle, and this limit falls short of the complexity of social organization.

The Supreme Court’s reapportionment decisions, in Bickel’s view, were not mistakes just because the Court chose the wrong principle. One-man-one-vote is too simple, but the Court could not have found a better, more sophisticated principle that would have served as a successful test for election districting across the country, or across the years, because successful districting depends upon accommodation with thousands of facts of political life, and can be reached, if at all, only by the chaotic and unprincipled development of history. Judicial activism cannot work as well as government by the more-or-less democratic institutions, not because democracy is required by principle, but, on the contrary, because democracy works without principle, forming institutions and compromises as a river forms a bed on its way to the sea.

What are we to make of Bickel’s argument? His account of recent history can be, and has been, challenged. It is by no means plain, certainly not yet, that racial integration will fail as a long-term strategy; and he is wrong if he thinks that black Americans, of whom more still belong to the NAACP than to more militant organizations, have rejected it. No doubt the nation’s sense of how to deal with the curse of racism swings back and forth as the complexity and size of the problem become more apparent, but Bickel may have written at a high point of one arc of the pendulum.

He is also wrong to judge the Supreme Court’s effect on history as if the Court were the only institution at work, or to suppose that if the Court’s goal has not been achieved the country is worse off than if it had not tried. Since 1954, when the Court laid down the principle that equality before the law requires integrated education, we have not had, except for a few years of the Johnson Administration, a national executive willing to accept that principle as an imperative. For the past few years we have had a national executive that seems determined to undermine it. Nor do we have much basis for supposing that the racial situation in America would now be more satisfactory, on balance, if the Court had not intervened, in 1954 and later, in the way that it did.

But there is a very different, and for my purpose much more important, objection to take to Bickel’s theory. His theory is novel because it appears to concede an issue of principle to judicial activism, namely, that the Court is entitled to intervene if its intervention produces socially desirable results. But the concession is an illusion, because his sense of what is socially desirable is inconsistent with the presupposition of activism that individuals have moral rights against the state. In fact, Bickel’s argument cannot succeed, even if we grant his facts and his view of history, except on a basis of a skepticism about rights as profound as Learned Hand’s.

I presented Bickel’s theory as an example of one form of the argument from democracy, the argument that since men disagree about rights, it is safer to leave the final decision about rights to the political process, safer in the sense that the results are likely to be sounder. Bickel suggests a reason why the political process is safer. He argues that the endurance of a political settlement about rights is some evidence of the political morality of that settlement. He argues that this evidence is better than the sorts of argument from principle that judges might deploy if the decision were left to them.

There is a weak version of this claim, which cannot be part of Bickel’s argument. This version argues that no political principle establishing rights can be sound, whatever abstract arguments might be made in its favor, unless it meets the test of social acceptance in the long run; so that, for example, the Supreme Court cannot be right in its views about the rights of black children, or criminal suspects, or atheists, if the community in the end will not be persuaded to recognize these rights.

This weak version may seem plausible for different reasons. It will appeal, for instance, to those who believe both in the fact and in the strength of the ordinary man’s moral sense, and in his willingness to entertain appeals to that sense. But it does not argue for judicial restraint except in the very long run. On the contrary, it supposes what lawyers are fond of calling a dialogue between the judges and the nation, in which the Supreme Court is to present and defend its reflective view of what the citizen’s rights are, much as the Warren Court tried to do, in the hope that the people will in the end agree.

We must turn, therefore, to the strong version of the claim. This argues that the organic political process will secure the genuine rights of men more certainly if it is not hindered by the artificial and rationalistic intrusion of the courts. On this view, the rights of blacks, suspects, and atheists will emerge through the process of political institutions responding to political pressures in the normal way. If a claim of right cannot succeed in this way, then for that reason it is, or in any event it is likely to be, an improper claim of right. But this bizarre proposition is only a disguised form of the skeptical point that there are in fact no rights against the state.

Perhaps, as Burke and his modern followers argue, a society will produce the institutions that best suit it only by evolution and never by radical reform. But rights against the state are claims that, if accepted, require society to settle for institutions that may not suit it so comfortably. The nerve of a claim of right, even on the demythologized analysis of rights I am using, is that an individual is entitled to protection against the majority even at the cost of the general interest. Of course the comfort of the majority will require some accommodation for minorities but only to the extent necessary to preserve order; and that is usually an accommodation that falls short of recognizing their rights.

Indeed the suggestion that rights can be demonstrated by a process of history rather than by an appeal to principle shows either a confusion or no real concern about what rights are. A claim of right presupposes a moral argument and can be established in no other way. Bickel paints the judicial activists (and even some of the heroes of judicial restraint, like Brandeis and Frankfurter, who had their lapses) as eighteenth-century philosophers who appeal to principle because they hold the optimistic view that a blueprint may be cut for progress. But this picture confuses two grounds for the appeal to principle and reform, and two senses of progress.

It is one thing to appeal to moral principle in the silly faith that ethics as well as economics moves by an invisible hand, so that individual rights and the general good will coalesce, and law based on principle will move the nation to a frictionless utopia where everyone is better off than he was before. Bickel attacks that vision by his appeal to history, and by his other arguments against government by principle. But it is quite another matter to appeal to principle as principle, to show, for example, that it is unjust to force black children to take their public education in black schools, even if a great many people will be worse off if the states adopt the measures needed to prevent this.

This is a different version of progress. It is moral progress, and though history may show how difficult it is to decide where moral progress lies, and how difficult to persuade others once one has decided, it cannot follow from this that those who govern us have no responsibility to face that decision or to attempt that persuasion.

V

This has been a complex argument, and I want to summarize it. Our constitutional system rests on a particular moral theory, namely, that men have moral rights against the state. The difficult clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular conceptions; therefore a court that undertakes the burden of applying these clauses fully as law must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality.

It may be necessary to compromise that activist posture to some extent, either for practical reasons or for competing reasons of principle. But Nixon’s public statements about the Supreme Court suggest that the activist policy must be abandoned altogether, and not merely compromised, for powerful reasons of principle. If we try to state these reasons of principle, we find that they are inconsistent with the assumption of a constitutional system, either because they leave the majority to judge its own cause, or because they rest on a skepticism about moral rights that neither Nixon nor most American politicians can consistently embrace.

So Nixon’s jurisprudence is a pretense and no genuine theory at all. It cannot be supported by arguments he can accept, let alone by arguments he has advanced. Our lawyer-President has abused his credentials by endorsing an incoherent philosophy of law and by calling into question the good faith of other lawyers because they do not accept what he cannot defend.

The academic debate about the Supreme Court’s power of judicial review must, however, have contributed to the President’s confusion. The failure to draw the distinctions I have described, between appealing to a concept and laying down a conception, and between skepticism and deference, has posed a false choice between judicial activism as the policy of moral crusade and judicial restraint as the policy of legality. Why has a sophisticated and learned profession posed a complex issue in this simple and misleading way?

The issue at the heart of the academic debate might be put this way. If we give the decisions of principle that the Constitution requires to the judges, instead of to the people, we act in the spirit of legality, so far as our institutions permit. But we run a risk that the judges may make the wrong decisions. Every lawyer thinks that the Supreme Court has gone wrong, even violently wrong, at some point in its career. If he does not hate the conservative decisions of the early 1930s, which threatened to block the New Deal, he is likely to hate the liberal decisions of the last decade.

We must not exaggerate the danger. Truly unpopular decisions will be eroded because public compliance will be grudging, as it has been in the case of public school prayers, and because old judges will die or retire and be replaced by new judges appointed because they agree with a President who has been elected by the people. The decisions against the New Deal did not stand, and the more daring decisions of recent years are now at the mercy of the Nixon Court. Nor does the danger of wrong decisions lie entirely on the side of excess; the failure of the Court to act in the McCarthy period, epitomized by its shameful decision upholding the legality of the Smith Act in the Dennis case, may be thought to have done more harm to the nation than did the Court’s conservative bias in the early Roosevelt period.

Still, we ought to design our institutions to reduce the risk of error, so far as this is possible. But the academic debate has so far failed to produce an adequate account of where error lies. For the activists, the segregation decisions were right because they advanced a social goal they think desirable, or they were wrong because they advanced a social goal they dislike. For the advocates of restraint they were wrong, whether they approve or disapprove that social goal, because they sacrificed the principle that the Court is not entitled to impose its own view of the social good on the nation.

Neither of these tests forces lawyers to face the special sort of moral issue I described earlier, the issue of what moral rights an individual has against the state. The activists rest their case, when they argue it at all, on the assumption either that their social goals are self-evidently good or that they will in the long run work for the benefit of everybody; this optimism exposes them to Bickel’s argument that this is not necessarily so. Those who want restraint argue that some principle of legality protects constitutional lawyers from facing any moral issues at all.

Constitutional law can make no genuine advance until it isolates the problem of rights against the state and makes that problem part of its own agenda. That argues for a fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place. It is perfectly understandable that lawyers dread contamination with moral philosophy, and particularly with those philosophers who talk about rights, because the spooky overtones of that concept threaten the graveyard of reason. But better philosophy is now available than the lawyers may remember. Professor Rawls of Harvard, for example, has just published an abstract and complex book about justice which no constitutional lawyer will be able to ignore.⁴ There is no need for lawyers to play a passive role in the development of a theory of moral rights against the state, however, any more than they have been passive in the development of legal sociology and legal economics. They must recognize that law is no more independent from philosophy than it is from these other disciplines.

It is perhaps more urgent now that constitutional lawyers face and debate issues of political and moral philosophy. Mr. Justice Rehnquist is relatively young, and he has demonstrated intellectual power; it is likely that he will become the intellectual leader of the Nixon Court. Contrary to Nixon’s advertisement, he is not, on the record, a champion of judicial restraint. He is a conservative activist, who can be expected forcefully to argue not for deference but for a narrow conception of individual rights. Liberals who oppose that conception will need more than the old rhetoric about the Court being the moral tutor to the nation; they will need a moral theory that shows why the rights they insist on are requirements of human dignity, or are for some other reason requirements that the nation must recognize to make good the promise of its constitutional system.