What binds society together? The libertarians reply that the cement of society (so far as they will endure any binding at all) is self-interest, closely joined to the nexus of cash payment. But the conservatives declare that society is a community of souls, joining the dead, the living, and those yet unborn; and that it coheres through what Aristotle called friendship and Christians call love of neighbor. -- Russell Kirk, Libertarians: the Chirping Sectaries (1981).
A lawyer colleague of mine once shared a dispute he had with a neighbor. The specifics are lost to me now, but it was a species of minor conflict typical of sharing a property line. A disagreement over the placement of a fence, perhaps. The dispute arose in the usual way, with the neighbor initiating a dialogue by setting out his considered view of the matter. The lawyer, owing to that fundamental defect in his nature that arrived him at the business of litigation in the first place, joined the cause by declaring his intentions of legal action, thus abruptly ending the round of pleasantries. I have no doubt my colleague, an intelligent and well-trained lawyer, was correct on the merits of his legal case. But I would have suggested, had he asked: don't litigate where you eat. Lawsuits make bad neighbors.
Catholics and fellow travelers will recognize that violated in the story above was the principle of subsidiarity: the most proximate resolution tends to be the best one. The best neighbors, then, are those who share the same views, and in the case of minor differences, work toward a private resolution. When fault lines cannot be avoided, regulations of space and uses become necessary; and only in the extreme case, a judge – a complete stranger to the parties and the neighborhood – will be called upon to intervene.
To be of any use, subsidiary depends on an affirmative answer to the question: Do we agree? Do we give the same answers, in the main, to the most basic and important questions of human affairs? For if we do, there is scarcely any need for law to answer them. The appearance of fault lines, on the other hand, stimulates the business of justice, producing laws and judges and enforcers to police the emergence of warring platoons. Anti-sodomy norms, for example, were not themselves challenged when enacted into law in colonial America. But when the cultural support crumbled, the laws proved less than worthless: by codifying itself, sexual ethics offered its head into the reformers' noose – and got nothing in return, for such statutes could only serve, if at all, as a supererogatory reminder of a broad cultural consensus now long extinct. A culture cannot be won by law, even if it can be lost by it.
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I thought of this after listening to Clark Neily's recent presentation to the Orange County Federalist Society, with dispatches from the trenches of his work litigating in favor of economic liberties. Neily's book, Terms of Engagement, forcefully argues for economic liberties, originally abused by legislatures and now unfairly maligned by courts and the legal academy. 'Twas not always so: the historical and legislative record seem to show the Fourteenth Amendment meant to protect economic liberties, and the cases so holding – now said to represent capitalism's tooth and claw at their very reddest – do not live up to their caricature; for when the historical record was not properly curated, and when legislatures fixed their gaze on the economy, and newspapers theirs on Supreme Court justices (The "Four Horsemen" was a NY Times coinage, as G. Edward's White's scholarship discusses), the precedent was licked. So devastating was the blow that the doctrine (now subsumed under the hopelessly confused moniker "substantive due process") was considered too damaged for later use in the Court's weird science of delivering a new body of sexual rights. The latter were conceived in the Constitution's "penumbra," without a hint of irony that economic liberties had just been cast into those very shadows.
Yet even while rescuing economic liberties is a just cause, I am more reluctant about Neily's broader argument for a more robust "judicial engagement," which essentially amounts to abandoning all presumptions in favor of the constitutionality of duly-enacted laws. Starting from economic liberties, the call for greater suspicion and scrutiny of statutes does wet the appetite. And I confess a temptation toward a judicial doctrine that would put teeth in the challenge to, say, environmental laws, passed not out of public-spiritedness so much as sacrament. Yet I cannot shake the suspicion that this move simply replaces one government tyrant with another.
To this, the libertarian reminds us: for want of what we might fear a robed tyrant, the next offensive statute will meet no opposition in the judiciary. When it happened in Buck v. Bell, to give a real and terrible example, Justice Oliver Wendell Holmes refused to be a tyrant; he affirmed Virginia's eugenics law, and became a monster. And so a stark choice is offered: submit to the judiciary who might – might – give succor against the laws, or take your chances against your neighbors.
The late Judge Robert Bork, thought by many, uncharitably, a tyrant and a monster both, also considered this choice. His answer seems wise, in that resigned, no-easy-way-out way that often attends true wisdom:
Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.
And so, one might conclude, Judge Bork would have joined Justice Holmes in affirming a duly-enacted eugenics statute. And yet, perhaps not. We appoint judicial officers, not judicial philosophies, and while a judge ought to have a philosophy and let it be his guide, there is something else – conscience, maybe, or wisdom, common sense, or the divine spark, &c. – which compels him in the rare case to rise above principle. But when in doubt, judges ought to err on the side of humility and let the more nimble lawmaking process do its work: the states, let alone by the Court, sterilized – tragically, horrifically – about 28,000 following Buck v. Bell; the Court, meanwhile, after its pro-libertarian Roe v. Wade decision, has overseen – tragically, horrifically – the abortion of over 57 million, and counting. Small wonder that, ever since, nominees to the Court have been subjected to intense scrutiny of their positions on abortion specifically and their judicial philosophies generally, signaling the era of gridlock in staffing the federal bench. Even Citizens United drew hackles from the president at a state of the union address, and an unprecedented – if legally pointless – ballot initiative that will let Californians express their up-or-down opinion on the decision.
Besides, without a roughly uniform concept of liberty, even the most "engaged" court would be left merely to arbitrate a war of all against all, and the judge's decision will be seen as resting on neither reason nor judgment, but merely will. There is a "curious assumption," Russell Kirk noted about libertarians' intellectual godfather, J.S. Mill, "that most human beings, if only they were properly schooled, would think and act precisely like John Stuart Mill." But in fact there appears little effort by libertarians at building civic friendship. And it is too much to expect the Court to impose a friendship from afar. Nor does it enjoy any superior moral record over the political branches: the American public now find sterilizing "imbeciles" repugnant, yet eliminating “populations that we don’t want to have too many of" is still in with an "engaged" Court majority. With an eye again to the scoreboard, the public corrected and apologized for its vile eugenics statute after a mercifully small fraction (about five percent) of the casualties caused by the folly in Roe, which the Court remains satisfied to uphold even as it daily multiplies its victims.
And so, the fear of an "unconfinable judicial power" is felt by all but the libertarian, who cannot imagine any act of the slavering mob he would not happily do without. Fearful of the whim of neighbors he considers stupid or theocratic, the libertarian damns their moralizing and asks judges to fill the void with pure, detached reason, to have the laws "remade after some pattern of 'normality' hatched in a Viennese laboratory to which I have never professed allegiance," in the words of C.S. Lewis. And so surrogacy, suicide, mutilation, cloning – whether these harms be self-inflicted or inflicted upon – all these and more at the center of our quest for meaning as social beings – all are ruled out by the libertarian, falling into the empirically untestable chasm of ethics and morals, the alibi of theocrats, disallowed from bringing any influence to bear on the laws. For reason, pure and detached from a moral sensibility, has nothing to do: without a major premise, all the minor premises in the world cannot complete the syllogism to arrive at a conclusion. And so, as Elizabeth Anscombe said of David Hume, the libertarian is a mere – brilliant – sophist. For all the libertarian's efforts against moralizing, he succeeds only in casting it into the shadows; theology having been banned, the new theocrat emerges.
Uncertain, then, is democracy's fate under libertarianism, where the moral sense is out of bounds. Once judges can determine, with the aid of skilled litigators and their teams of experts, whether a given law is "rational" and therefore permissible, there is precious little discretion left to the people to order their own neighborhoods and communities. Which, it would seem, is as the libertarian prefers it. While libertarians want to shrink the government, they don't suppose it worth mentioning it means removing you from it.
Not that it could never work. As history shows, when the Court tests the public's patience – as in Dred Scott; and Lochner and Roe the following century; and even Citizens United in our own – some form of reshuffling of the deck tends to occur. Until quite recently, in fact, justices were selected from a variety of geographies and backgrounds to engender public trust. Even Earl Warren worked hard for a unanimous decision in Brown v. Board, likely to signal that its disruptive but correct outcome was no flight of fancy or product of partisanship. In the Court's nearly two-and-a-half centuries, Americans have never risen against it; but on occasion, they do stir.
And so even if you could put your friends on the court to hold you harmless from your neighbors, they will, when their patience wears, simply remove the judges from office or the court from jurisdiction. In the end, it will have been better to cultivate friendship with neighbors than favor with judges.