The dismal 1988 Presidential Election had at least two distinctive characteristics. It was our first presidential race in which virtually all the central issues—criminal rights, abortion rights, capital punishment, the required recital (by teachers) of the Pledge of Allegiance—were judicially generated. Second, and this is directly related, it produced the lowest voter turnout since 1924.
Democratic politics ideally revolves around the compromises needed to secure widespread consent for government actions. Representative government, which encourages citizen participation, leaves the losers in a political contest with part of what they asked for or at least a feeling that their interests were considered. A judicialized politics, in contrast, bypasses public consent. Profoundly anti-democratic when it goes beyond vindicating the fundamental rights of citizenship, judicial politics alienates voters by placing public policy in the private hands of lawyers and litigants. And since rights are absolute, it polarizes by producing winner-take-all outcomes, in which the losers are likely to feel embittered. It's that bitterness, that resentment—whose symbolic residue is the stuff of thirty-second political-attack ads—that now helps drive American politics.
Politics and the judiciary have always been intertwined. For instance, some of the arguments invoked by the conservative Supreme Court nominee Robert Bork at his confirmation hearings, in 1987, replicated the arguments used by President Franklin Roosevelt in his war with a Republican judiciary. FDR insisted that successful government policies required the support of the great majority of the American people. He denounced "the stately ritual of the courts" as creating a politics "in which lawyers play all the speaking parts ... although they always disagree" among themselves. A government, he wrote, of lawyers "who desire to have all processes of Government conducted through lawsuits" was an antidemocratic invitation "to endless and innumerable controversies" and a threat to both "common sense" and "substantial justice." But whereas the conflict of the 1930s that pitted the courts against the elected branches of government came to a head in 1937, with Roosevelt's court-packing plan, the same tensions today are playing themselves out in a process of almost continuous constitutional combat.
Our contemporary political struggles are reflected in the number and type of recently proposed that now helps drive American politics. constitutional amendments. Since the Constitution was adopted, in 1789, more than 10,000 constitutional amendments have been proposed in Congress. But whereas prior to the 1960s an average of fewer than ninety amendments were proposed annually, from 1961 to 1980 the number jumped to more than 230 a year. Prior to the 1960s most amendments addressed the forms of government that can be changed only constitutionally, such as the procedure for presidential elections. But the recent spate of proposed amendments reflects the vastly expanded scope of the Supreme Court's decision—making. There are some, for instance, on school prayer, abortion, and busing, that are designed to overturn unpopular Supreme Court decisions. But many others attempt to turn ordinary political questions, such as balanced budgets and fixed levels of taxation, into matters of right that demand constitutional protection against the give and take of representative democracy.
The attempt to constitutionalize policy—most dramatically with abortion—has resulted in a zero-sum, single-issue politics. Where an interest masked as a right is involved, the single-issue proponents can withstand the collapse of the heavens as long as their interest is served. That is because the assertion of rights fences off the proponents of policies from the social costs those policies impose on the public at large.
Consider, for instance, the tension between the "right" to very expensive treatment that a terminally ill patient has and the social costs that treatment might impose. A rights-based approach leads to the argument presented by Judge Janine Geske, of Wisconsin, that economic considerations are "totally inappropriate" in such a case. In contrast, Judge George Stigler, of Iowa, argued that to ignore economic considerations is to sentence rural hospitals to bankruptcy, at a considerable cost to the communities they serve. What is lost, then, if rights are interpreted so expansively as to define policy, is a concern for the cumulative consequences of individually rendered rights-based decisions.
Similarly, a concern for social outcomes is often lost in debates about public safety that focus narrowly on individual rights. The defense of rights as defined by various branches of the "rights industry" produces a situation in which the National Rifle Association has defended a person's right to own automatic weapons and the American Civil Liberties Union has asserted that requiring a person to pass through a metal detector in order to board a plane constitutes unreasonable search and seizure. Pressed to defend these extreme positions, both organizations invoke the famous slippery slope. Start here, they insist, and we're on the way to fascism.
We are by no means on the way to fascism, but we are, as John Dewey foresaw, on the way to a situation in which the philosophical absolutism of rights has produced a political absolutism. Any group that can make a claim on government in terms of rights—for instance, the artists who insist that they have a First Amendment right to government funding—no longer needs to explain itself or justify its actions. It's an outcome foreseen by justice Oliver Wendell Holmes when he warned that "all rights tend to declare themselves absolute to their logical extreme."
Take the abortion issue, which is peculiar to the United States among all the Western industrialized nations, the others having settled it largely through legislative compromise. It pits advocates for women's rights against proponents of fetal rights on an issue that cries out for the compromise heartily desired by the vast majority of the American people but denied by a rights-based politics. Should the Court be so impolitic as to overturn Roe v. Wade completely, many liberals will begin to sound like the conservative Court-basher Ed Meese. Jumping the gun, Molly Yard, the president of the National Organization for Women, recently thrilled a crowd of 150,000 pro-choice demonstrators in Washington by striking a confrontational tone. "We will not," Yard told the cheering crowd, "obey your dictates [Mr. President] nor those of the Reagan Court."
The New Deal, concerned as it was with the efficacy of government action, tried to break out of the formalist straitjacket imposed by smothering issues in rights-based claims and counterclaims. It recognized that just as medical misjudgment can produce iatrogenic, or doctor-generated, disease, judicial misjudgment can have disastrous effects on public policy. Rights, to continue the medical analogy, are a bit like antibiotics. They are wondrous inventions that, when used well, are essential for the preservation of substantive as well as formal freedoms. But just as antibiotics can, when overused, produce severe reactions, so can a rights-based politics. Those reactions have in turn produced a politics of alternating excessesor, as Charles Paul Freund, writing in The New Republic, has put it so well: "Nothing in moderation has been our unofficial motto for a long time, with libertine and puritan subcultures leapfrogging each other to set the tone for an unstable mainstream.... The desirability of tolerating small vices so as to avoid worse ones never seems to come up ... [on our] cultural merry-go-round."
The politics of rights subverts the constitutional design for self-government. Rather than having the Bill of Rights stand guard over the body of the document, it displaces it. The politics of rights replaces the politics of persuasion and deliberation with a judiciary whose swollen powers bring disrepute to the essential notion of rights even as they undermine public trust in government. We as Americans today have more rights than ever, yet by and large we feel more politically powerless. Abraham Lincoln articulated our plight in his first inaugural address: "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 instant they are made, in ordinary litigation ... the people will have ceased to be their own rulers."
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