Months ago, when the scandals of the Nixon administration were fewer and relatively simpler, there was some self-serving talk of a commonalty of error among the Watergate perpetrators, as the arresting officers might have called them, and the radical Left of the 1960’s. Too much zeal, that had been the sin of his people, the President himself suggested in one of his Watergate speeches in the spring; it was a sin and inexcusable, but also venial. Like the zealots of the Left, these people had put their cause above the law. They had been led into their error by the toleration that much liberal opinion had shown for the zealotry of the Left, for draft-dodgers and demonstrators of all sorts. The lesson to be drawn was that the law is sacred, rising above all causes, and no violation of it is excusable, none. A rededication to law and order on all sides, by all factions, was called for. The President indeed had been long calling for it. Watergate, we were left to infer, was actually a vindication of the President’s long-held position, and a reproach to that large body of liberal opinion which had tolerated lawlessness, and ended by infecting even the righteous with it.
The point was most vividly if plaintively called to attention by Jeb Stuart Magruder. (We lawyers kept cringing as lawyer after lawyer turned up. But there was enough to cringe at for everybody. Why does Magruder have to be called Jeb Stuart, my colleague C. Vann Woodward has asked?) Magruder noted that he had been taught ethics at Williams College by William Sloane Coffin, Jr. The symbolic expression of the theme!
This was all a vulgar attempt to exonerate the dishonorable, a prelude to plea-bargaining. And the symbol chosen for the theme was a bad fit. When William Sloane Coffin, Jr. taught Jeb Stuart Magruder ethics, he wasn’t William Sloane Coffin, Jr. That was in the 50’s, before Yale, and before there was any “Movement.” It was when Benjamin Spock was still Dr. Spock, and before Coffin was Coffin.
And yet, to use the idiom of the Watergate actors, there is a point of contact, and it is of some interest, even though quite without taking account of it, sufficient explanations for much that has happened and for many of the actors may no doubt be found, or found unnecessary.
I don’t know how many of Mr. Nixon’s men can be credited, if that is the word, with self-righteous moral or ideological motivation. But perhaps for some of them moral or ideological imperatives clashed with the legal order more or less as they did for the radical Left in the 1960’s. There is a well-known passage in E. M. Forster’s essay, “What I Believe,” where he says that if he had to “choose between betraying my country and betraying my friend,” he hoped “I should have the guts to betray my country.” This was written in 1939, and Forster had witnessed the attempt by both the Nazi and Soviet dictatorships to impose a total commitment and obligation to the state, itself embodying an ideology, which was to override all other commitments and relationships. The world was full of wretched stories of children informing against parents, wives against husbands and possibly also vice versa, friends against friends, all glorying in it. Against this, Forster was in revulsion. He says just before the passage I quoted that he believes in personal relations, which in the age of faith, of the clash of creed against creed, in which he was sorry to find himself, were regarded as “bourgeois luxuries” to be got rid of so as to make room for dedication to “some movement or cause.” He says he hates the idea of causes, and then goes into the passage declaring his choice of friend over country.
But the passage has most often been taken out of historical context. Country has been read literally as meaning any organized society and its legal order, which perhaps is what Forster meant; and friend has been read to refer not only to the personal loyalties Forster had in mind but also, very much against his sense, to ideologies and causes—precisely what he hated. And so in Forster’s dictum, as received if not altogether as intended, we can find a connection between some at least of Mr. Nixon’s men and part at least of the radical Left. Ideological imperatives and personal loyalty prevailed over the norms and commands of the legal order. They kept faith with their friends, and had the guts to betray their country.
It is not remarkable that self-righteousness and ideological fixation should be wedded to authoritarian attitudes, and that the temptation to abuse power should arise. What is interesting, what makes the point of contact a significant starting point for inquiry, what is interesting even about the vulgar—because wholly indiscriminate—attempt to turn Watergate into a reproach to liberal opinion, is that Watergate is evidence of a weakened capacity of our legal order to serve as a self-executing safeguard against this sort of abuse of power. The checks and balances of the government, the contrivance, in the words of the 51st Federalist, of “the interior structure of the government,” so that “its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places”—this contrivance is working reasonably well. The inner structure was meant to insure accountability, and it is doing so. But it is accountability by crisis, accountability by trauma, accountability tending to shade into retribution. One would have expected that the legal order would have operated to prevent what we now know to have occurred. It is a first line of defense that has generally held: not always against plain theft, but effectively enough against self-righteous abuse of executive power in the service of ideological or moral ends. It has held in the past in this respect, making it unnecessary to reach the battlements and entrenchments of the constitutional checks and balances. It did not hold this time.
I come thus to the statement of a thesis. I do not pretend to explain Watergate or the Nixon Presidency. And I do not propose to understand, for fear that there may be some truth in the saying, tout comprendre, c’est tout pardonner. Again, I am far from suggesting that Watergate was inevitable. My thesis is only—or at least the only explicit statement of it I am willing to make is-that much of what happened to the legal and social order in the fifteen years or so before Watergate was prologue. The scandals of corruption in our history had their climates, their prologues in war-profiteering and in general relaxation of standards. The Vietnam war has produced no major scandal of corruption. It and much that preceded it produced a moral firestorm, which was the prologue to Watergate.
_____________
In order to identify those aspects of recent history which I think came to a point of contact with Watergate, I must draw some distinctions concerning the position of conscientious objection and of civil disobedience in our legal order, as I see it. Our law has traditionally recognized a certain autonomy of conscience, and has therefore allowed certain conscientious objections, particularly to war, although not to war alone, as became happily evident when the Supreme Court in 1972 upheld the constitutional right of the Amish not to submit their young to organized education past the eighth grade. And even beyond the autonomy of conscience that the law is able to make allowance for within itself, the legal order may be said to countenance conscientious disobedience.
Much depends on the kind of law that is in question, the demands it makes of the individual, the foundation it has in shared values, and the kind of disobedience to it and its source. Frequently, however, the unlawfulness of disobedience to law on sincerely held grounds of conscience is not taken as conclusive against the legitimacy of disobedience. We often consider, rather, that disobedience raises a question about the law at which it is directed, a question not only about its effectiveness—that is obvious—but about its Tightness, or at least its utility.
In what I just said I have blurred a distinction, useful for many purposes, between conscientious objection and civil disobedience. Conscientious objection, as has been pointed out by many writers, among them notably Hannah Arendt and Ernest van den Haag, demands nothing more than exemption from a legal obligation. No further or broader challenge to a law inheres in conscientious objection. But as Hannah Arendt has written and as I have just implied, “conscientious objection can become politically significant when a number of consciences happen to coincide and the conscientious objectors decide to enter the marketplace and make their voices heard in public.” There is then necessarily implicit a challenge to the law objected to, or at least the legal order perceives such a widespread manifestation of conscientious objection as a challenge to the law, and the objectors are assimilated to the ranks of civil disobedients.
As to civil disobedience, there is much conduct that bears its appearance and that in other, more unitary systems, which do not diffuse power and law-making authority as ours does, would indeed be civil disobedience. With us a great deal of such conduct is not. In our federation, there are laws within laws and laws above laws. Thus one system of laws which is valid and fully authoritative within itself may be called into question by appeal to another, generally superior system; and in some measure, it works the other way as well. It is possible, therefore, for men to behave in a manner which is lawful, but is not recognized as such by the legitimate authority in one or another place, and therefore constitutes defiance of that authority, and causes disorder; or in a manner that may turn out to be lawful, but that at the moment violates the positive law of a given place, also causes disorder, and what is more, cannot with assurance be assumed to prove lawful in the end. In a unitary system, behavior of this sort would carry every aspect of civil disobedience. But it is often invited by the many-tiered process of law formation that is characteristic of our system.
_____________
A general definition of civil disobedience, applicable to our legal order, would be the following: Civil disobedience is the act of disobeying formally binding general law on grounds of moral or political principle without challenging the validity of the law; or the incidental disobedience of general law which is itself neither challenged as invalid nor disapproved of in the course of agitating for change in public policies, actions, or social conditions which are regarded as bad on grounds of moral or political principle—all in circumstances where the legal order makes no allowance for the disobedience. This last qualification has to be added because the First Amendment is construed as making some allowance for the sort of incidental disobedience referred to in the second half of the definition.
In purpose if not in effect, civil disobedience differs greatly from conscientious objection. The effect of the coincidence of multiple consciences objecting to a law and the effect of civil disobedience may be the same. But conscientious objection is a withdrawal. Civil disobedience is ineluctably an attempt to coerce the legal order, an exercise of power in the sense in which Burke defined it: “Liberty, when men act in bodies, is power.” And it is not easy to make room for it, although I shall argue that our legal order does so. Thus not only the Hobbesian but the contractarian view of the nature and foundation of society can tolerate no civil disobedience at all. The contractarian view legitimates government as a compact among citizens, embodying the agreement of each to abide the judgment of all. The ends of government are substantially predetermined in the contractarian view, in that they are limited by timeless principles, the rights of man. Government is allowed some margin of error, but the premise is that it will normally act only in plausible pursuit of predetermined ends. If it should not, says Locke, the remedy is revolution, and there is a right to use force against the government. Short of the right of revolution, there is an absolute duty to obey. Rousseau held that the people, expressing themselves through universal suffrage, give voice to the general will, although he allowed that they might also not. The general will is the highest good, and when the people by majority vote give it voice, the individual owes absolute obedience, even unto death. If at times a minority has hold of the true general will it follows that absolute obedience is equally owed to it. This in fact, said Rousseau, only forces the individual to be free.
The latest contribution to contractarian theory, by Professor John Rawls, in his A Theory of Justice, is somewhat curious. It defines the general will—called justice as fairness—in more detail than Rousseau, and commits government to its effectuation. Like Rousseau, it then insists on popular sovereignty, modified only by some power in the judges to keep government within the limits dictated by the general will. And it posits a duty to obey. But it makes allowance, one may think inconsistently, for civil disobedience, defined as above, with the proviso that it be public and willing to accept punishment. Civil disobedience is allowed because, it turns out, justice as fairness—the general will—is not always readily ascertainable, the majority and the judges may be wrong, or less right than a protesting minority, and civil disobedience can play its role in helping the entire society decide what is right. In that event, it would seem, there is less to the prior detailed definition of justice as fairness than met the eye.
In the actual American legal order, ends are less permanently predetermined than by contractarian theory, faith in majoritarianism is less enthusiastic than Rousseau’s, readiness to have recourse to revolution is not as great as Locke’s, and there is little willingness to accept the righteous dictates of a minority possessed of the true general will. What is above all important is consent—not a presumed theoretical consent, but a continuous actual one, born of continual responsiveness. There is popular sovereignty, and there are votes in which majorities or pluralities prevail, but that is not nearly all. Majorities are in large part fictions. They exist only on election day and they can be registered on very few issues. To be responsive and to enjoy consent, government must register numerous expressions of need and interest by numerous groups, and it must register relative intensities of need and interest. Neither the vote nor speech—the latter, after all, an elite exercise—sufficiently differentiates needs and interests, or expresses intensity. Civil disobedience can often effectively do so. Hence it is that civil disobedience has accompanied so many of the most fruitful reform movements in American history. Hence it is that its legitimacy must be recognized.
But there must be limits, both to conscientious objection and to civil disobedience, limits to be stated not as positive law imposed by the enforcement machinery of the legal order, but as a moral obligation, a duty to obey. For use of the enforcement machinery of the legal order denotes the point at which it has broken down. The test of a legal order is its self-executing capacity, its moral authority. In an extraordinarily sustained experience of civil disobedience and conscientious objection on the part of at least three distinct, sizable groups in the society over a period of some fifteen years, which perhaps no other society could have endured without a change of regime—in this sustained experience, I shall suggest, the limits were often transgressed. The experience started with white Southerners in the mid-50’s; it was followed and overlapped by the civil-rights movement; and it ended with and was overlapped by the white-middle-class movement against the war, which bade fair for a while to take permanent shape as a movement addressing numerous other issues as well, from ecology up, down, and sideways to gay liberation. The limits, as I say, were transgressed, and in some measure, I am willing to suggest, Watergate is a replica of the transgressions.
A first and most easily stated limit was very clear to Lincoln when he opposed the Dred Scott decision. “We do not propose,” he said, “that when Dred Scott has been decided to be a slave by the court, we as a mob will decide him to be free. . . . but we nevertheless do oppose that decision as a political rule which shall be binding. . . .” The line is thus drawn between the general law, the law of the land, as it is commonly called, enunciated in a judicial decision, or mutatis mutandis in legislation, and the judicial judgment addressed to the parties in an actual case. There is no moral duty always and invariably to obey the former. There is a moral duty to obey the latter.
This limit was transgressed repeatedly in the South during the 50’s and 60’s, by private and official persons, and by mobs who disobeyed or violated judicial decrees. It was transgressed as well by disruptive courtroom behavior on the part of the radical Left in the late 60’s, which amounted to the same thing, denoting as it did a rejection of the process and necessarily, therefore, of its results. Both kinds of transgression were perhaps more spectacular than numerous, but they told.
Another sort of limit has to do with means. Violence must be a monopoly of the state. In private hands, whatever its possible misuses by the state, it is always an unjust weapon. It is inadmissible, but was of course widely used and excused. Only the other day the historian Gabriel Kolko said of the man who planted a bomb in 1970 at the University of Wisconsin’s Mathematics Research Center, which killed one person and wounded four: “To condemn Karl Armstrong is to condemn a whole anguished generation. His intentions were more significant than the unanticipated consequences of his actions.”
Some nonviolent interference with the justified and lawful activities and expectations of innocent third parties is an inevitable concomitant of civil disobedience, and if contained and civil, is to be borne, subject to other limits to which I shall come in a moment. But when the interference is massive, when it is not civil, when it borders on violence or threatens it, when it is coercive not in its ultimate intent, as all civil disobedience necessarily is, but in its immediate impact, when its imposition is not of inconvenience but of terror, then it is unacceptable. And yet we saw quantities of it.
_____________
Additional limits, at least equally important, are much more difficult to state. One, also having to do with means, is suggested by the action of Daniel Ellsberg in using his position of trust to spirit out the Pentagon Papers, or the action of the unknown person who handed to Jack Anderson a transcript of a secret meeting on the India-Pakistan war at the White House presided over by Henry Kissinger. There is in such cases the question whether a legal obligation was breached. This was and remains a question in some doubt in both the examples I am discussing, which the aborted Ellsberg litigation did not settle. I assume, strictly for purposes of argument, that a legal obligation was breached, although in truth I believe it to be quite doubtful that there is on the books a statute that effectively renders illegal what Ellsberg, for example, did.
At any rate, these were acts of conscience taken against at least a privately formulated obligation. They were taken in conditions where conscience could have been satisfied in part by resignation. Instead Ellsberg and the unknown person to whom I referred allowed their consciences to push them into affirmative action. That was not because as moral beings they could do no other. It was rather because they wanted to make others do otherwise than they were doing. Their acts, their own individual acts at the time they took them, moreover, not possibly their acts multiplied by the acts of thousands of others which in the aggregate might exert political pressure: their own acts, unaided by other independent consciences, had a different and greater impact than ordinary conscientious objection, I should say a coercive impact, lent them by the trust that had been reposed in the actors personally. These actors were not denying the legal order their own participation in its immoral activity, as they viewed it. They sought rather to coerce the legal order by destroying pro tanto the procedures by which it conducts its business.
I do not say that such acts can never be justified. Suppose Ellsberg had discovered evidence of plans to herd people into concentration camps and gas them, or evidence of treason? These, however, are examples of an extreme kind of moral outbreak activating the individual. My point is that impositional, coercive acts of conscience of this sort should require a much higher moral threshold than does passive conscientious objection, and I do not believe it was clear in either the Ellsberg or the Kissinger secret-meeting case that the threshold had been reached. Certainly the Vietnam war raised moral issues. But the secrecy of the Pentagon Papers did not raise the same ones, by any means, even though the mendacity of government is a serious matter. And it was self-deception to think that release of the Papers would solve the moral problem of the war. Anyone contemplating an impositional coercive act of conscience must recognize orders of magnitude among moral questions. An insufficiently differentiated exaltation of wrongs to the same moral level is quite entirely the same as, and no less dangerous than, moral blindness.
Just as there are circumstances when a breach of duty of the impositional sort committed by Ellsberg could be justified, so conditions arise when extra-legal action by a President in the interest of national security are called for. Again, the threshold must be very high. But if challenged, such actions may in the proper circumstances be ratified as legal, if only from necessity, as the removal of Japanese-Americans from the West Coast in 1942 unfortunately was. The principle of legitimation is the simple one once stated by Justice Jackson: The Constitution is not a suicide pact. The President has the function at times, even the duty, to see that it does not become one. Lincoln discharged this duty. And even when not ratified by the institutions of the legal order—as the seizure of the steel industry by Harry Truman, or Lincoln’s suspension of habeas corpus, or martial law in Hawaii in World War II, or domestic wiretapping by Presidents from Franklin D. Roosevelt through Nixon were not ratified—such actions are not necessarily condemned. But the threshold for taking them has in the past been enormously high. Legal norms have radiated with powerful force. In a paroxysm of paranoia, to state the case as indulgently as possible, the Nixon administration lowered the threshold. Early on, before Ellsberg, Mr. Nixon and his people may well have sorely abused what they regarded, not unjustly, as wiretapping authority legitimated by practice, and they at least contemplated other outrages, but it cannot be entirely a coincidence that Ellsberg’s removal of the Pentagon Papers from the Rand Corporation was the occasion for creation of the White House plumbers unit, so called. Threshold for threshold.
I set aside the judgment made by a newspaper in publishing what Mr. Ellsberg spirited out. Here also careful discriminations are required, but they are not controlled and hardly affected, I think, by the provenance of the material. I would say only, touching this issue glancingly as I do, that short of the case—plans for concentration camps, treason, and the like—in which it is plainly justified, the more unjustified the breach of the government’s trust in bringing the materials out, because their content is not such as to meet the high moral threshold required, the more justified and the easier the judgment of a newspaper in publishing them.
_____________
Returning to civil disobedience, let me restate, in approaching yet another limit, the grounds on which the legitimacy of civil disobedience can be rested. It is because on most issues we command no definite answers grounded in solid and generally shared values that we value an open, responsive, varied, and continual process of law-formation and provide numerous stages of decision-making, most of them provisional, and numerous opportunities for revision and resistance, including civil disobedience. But not only do the outcomes of the law-formation process, however provisional, count for something; what is more important, in the middle distance, and if also provisionally then over a much longer term, so that for a time they have a relatively enduring aspect, we do as a legal order hold some values, some principles, by which we judge the process and even some of its outcomes. Unless these are defended against coercive political action, there is no legal order, or at any rate, there is not this one. Therefore, the use of civil disobedience, not to redress grievances on the assumption of the continued operation of the system and by plausible appeal to its own principles, but against it, ought not be tolerated. Civil disobedience is one thing, revolutionary activity quite another, and the difference between them is told not only by their manner, but also by their objectives.
The distinction is rigorously drawn by Mr. Rawls in his A Theory of Justice, to which I referred earlier. The distinction was not drawn with anything like Mr. Rawls’s rigor in the 60’s. Much of the disobedience of the late 60’s was aimed not at the government of the day, but at the system, and it opposed the system, not as flawed and perfectible, but as evil and abominable. The rhetoric was loud and it was reckless and vicious. It abandoned all pretense of allegiance, it acknowledged no restraint and no bounds. Yet it was often tolerated and even echoed by seemingly responsible opinion in the press, in the universities, and among political leaders. Cries of repression and of fascism, for example, were raised almost as soon as Mr. Nixon took office, and they were irresponsible and unfounded at the time, no matter how plausible they may now seem in retrospect. At the time, they were bound to have an effect on administration morale. Men who are loudly charged with repression before they have done anything to substantiate the charge are apt to proceed to substantiate it.
In a larger sense, toleration of this rhetoric and of disobedience with such aims undermined the moral authority of the liberal tradition in this country, which as Louis Hartz pointed out years ago is at once also the American conservative tradition, or at least the tradition that conserves the liberal American legal and political order. Hartz quoted the distinguished insight of Gunnar Myrdal, as he called it: “America is . . . conservative. . . . But the principles conserved are liberal and some, indeed, are radical.” Liberalism has always been challenged from both flanks, and has always been a little anxious, since Jefferson, and like the Center in the third French republic, to make no enemies on the Left. It has historically been successful in coopting all but the revolutionary Left, moving far enough toward it to draw its sympathizers and outriders, but generally not so far as to be itself coopted rather than coopting. To move too far is to lose moral authority, and that rather than numbers is the source of the liberal ascendancy in American politics, which safeguards the norms of the American legal order against the lawlessness and ultimate authoritarianism of radical movements. Liberalism embraced too much of the Left in the 40’s, and the result was the triumph for a moment of the radicalism of Joseph R. McCarthy. It embraced inexcusably much in the late 60’s. In this sense Watergate is to American liberalism as McCarthyism was.
_____________
Still another necessary limit of civil disobedience was transgressed. Like law itself, civil disobedience is habit-forming, and the habit it forms is destructive of the legal order. Disobedience, even if legitimate in every other way, must not be allowed to become epidemic. Individuals are under a duty to ration themselves, to assess occasions in terms of their relative as well as absolute importance. For disobedience is attended by the overhanging threat of anarchy. We did not ration ourselves, and those in authority in the universities in the late 60’s imposed no rationing. Coming as the third wave of massive disobedience movements in fifteen years, the demonstrations of the late 60’s, including the most peaceable and legitimate ones of all, carried the clear and present danger of anarchy. And their objectives were of course not restricted to stopping the war. They went on to ecology and to numberless other social and economic objectives.
The point may be put in another and more general way with reference not only to civil disobedience. In 1969, President Kingman Brewster of Yale charged a number of speakers about to appear at a Yale alumni seminar with addressing the subject, “What is happening to morality today?” My answer at the time, if I may quote myself, was: “It threatens to engulf us.” The legal order heaved and groaned for years under a prodigality of moral causes, and if not broken, it is no wonder that it is badly bent. Vietnam, let us not forget, was not only a moral error, but for its authors, a moral urgency. The urgencies of “peace with honor,” of the clean life, of patriotism—in a word, Watergate—were merely the last straws. It is ironic, but entirely natural, that “law-and-order” as a moral imperative should have clashed with the legal order.
The legal order, after all, is an accommodation. It cannot sustain the continuous assault of moral imperatives, not even the moral imperative of “law-and-order,” which as a moral imperative has only a verbal resemblance to the ends of the legal order. No legal order can sustain such a bombardment, and the less so a federal constitutional order of separated and diffused powers. It is the premise of our legal order that its own complicated arrangements, although subject to evolutionary change, are more important than any momentary objective. This premise must give way at times, of course, to accommodate inevitable change. And change which is significant, as Justice Brandeis once wrote, manifests itself more “in intellectual and moral conceptions than in material things.” But our legal order cannot endure too rapid a pace of change in moral conceptions, and its fundamental premise is that its own stability is itself a high moral value, in most circumstances the highest. The legal order must be given time to absorb change, to accommodate it to itself as well as itself to it. If the pace is forced, there can be no law.
The assault upon the legal order by moral imperatives wasn’t only or perhaps even the most effectively an assault from the outside. It came as well from within, in the Supreme Court headed for fifteen years by Earl Warren. The judicial hallmark of Chief Justice Warren was that when some lawyer would be standing before him arguing his side of a case on the basis of some legal doctrine or other, or making a procedural point, or contending that the Constitution allocated competence over a given issue to another branch of government than the Supreme Court or to the states rather than to the federal government, the Chief Justice would shake him off saying, “Yes, yes, yes, but is it [whatever the case exemplified about law or about the society] is it right? Is is good?” More than once, and in some of its most important actions, the Warren Court got over doctrinal difficulties or issues of the allocation of competences among various institutions by asking what it viewed as a decisive practical question: If the Court did not take a certain action which was right and good, would other institutions do so, given political realities? The Warren Court took the greatest pride in cutting through legal technicalities, in piercing through procedure to substance. But legal technicalities are the stuff of law, and piercing through a particular substance to get to procedures suitable to many substances is in fact what the task of law most often is.
From within and from without, then, the legal order was bombarded by moral imperatives, and was reduced to submission time and again. The derogators of procedure and of technicalities, and other anti-institutional forces, rode high, on the bench as well as off. These were the armies of conscience and of ideology. If it is parodoxical that they were also the armies of a new populism, it is not a paradox to wonder at, for it has occurred often before, not least of all in Rousseau, who may be counted the patron philosopher of the time. The paradox, of course, is that the people whom the populist exalts may well, will frequently, not vote for the results that conscience and ideology dictate. But then one can always hope, or identify the general will with the people despite their votes, and let the Supreme Court bespeak the people’s general will when the vote comes out wrong.
It has been a time of populism to the Left and populism to the Right, strongly encouraged by the Supreme Court. There was a powerful strain of populism in the rhetoric by which the Court supported its one-man, one-vote doctrine, and after promulgating it the Court strove mightily to strike down all barriers, not only the poll tax, but duration of residence, all manner of special qualifications, and even in some measure, age, to the enlargement and true universalization of the franchise. In this the Court led successfully. It became irresistible dogma that no qualification for voting made any sense. It didn’t matter that you were a transient—the election is a snapshot, and wherever it catches you, you vote with no questions asked. No connection to place is relevant, there is no room for balancing interests and places, no need to structure institutions so that they might rest on different electoral foundations and in the aggregate be better able to generate consent. Every impediment, every distortion, including the electoral college, must go. All that matters is the people, told by the head.
Here the connection with attitudes that at least contributed to Watergate is direct. It was utterly inevitable that such a populist fixation should tend toward the concentration of power in that single institution which has the most immediate link to the largest constituency. Naturally the consequence was a Gaullist Presidency, making war, making peace, spending, saving, being secret, being open, doing what is necessary, and needing no excuse for aggregating power to itself beside the excuse that it could do more effectively what other institutions, particularly Congress, did not do very rapidly or very well, or under particular political circumstances would not do at all. This was a leaf from the Warren Court’s book, but the Presidency could undertake to act anti-institutionally in this fashion with more justification because, unlike the Court, it could claim not only a constituency, but the largest one. This Presidency acknowledged accountability only at quadrennial plebiscites, but not to other, less plebiscitary institutions, and certainly not to irresponsible private ones, or to something called “public opinion,” which is led and formed in mysterious ways, rather than being told by the head.
The accumulation of power in the Presidency did not begin with Richard M. Nixon, of course, but it reached heights made possible by the populism of the day. There was a time there, soon after the election of 1972, when Mr. Nixon gave the impression that he thought the American political process had taken place, so to speak, that it was over for a while, and that he could simply rule. We know again now that an election is the beginning as well as the culmination of a political process, and that the President, separate, independent, and critically important as he is, is part of the process, not its ruler. We were being led to forget, however, and had it not been for Watergate, conceivably we might have forgotten.
The Presidency of inherent powers, futurism, populism, and certainly moral urgency—these have too often been the vestments of liberalism in this century, though worn for the most part with a certain modesty. In the 60’s, the liberals, or large segments of them, consented to share these vestments, all but the first, with the radical Left, which adding several dashes of outrageous color, wore them immodestly. Diffusion of power, pragmatism, the relativism of values, gradualism, institutionalism, process, procedure, legality, technicalities—these were allowed to become the cloak of conservatism, indeed of reaction, and were not wanted on the voyage. Well, this cloak was not wanted in the White House either, we have learned. I don’t know when Mr. Nixon caught the liberals bathing, but he did walk off with their clothes, and stood forth wearing the plebiscitary Presidency, his own futurism, and his own moral imperatives. We are all liberals, we are all conservatives, Mr. Nixon might have said, as for Jefferson we were all Republicans and all Federalists in 1800.
_____________
Watergate is the latest assault, the only one which was at once vicious and powerful, although other powerful ones were damaging, albeit not vicious—the latest assault in an age of assaultive politics. We cannot survive a politics of moral attack. I don’t know how near a thing Watergate was, but perhaps it will be said that it was too near. We must resume the politics of what Burke called the “computing principle: adding, subtracting, multiplying, and dividing.” The denominations to be computed are very often moral, to be sure. But few if any are absolute, few if any imperative. And the highest morality almost always is the morality of process, what Professor Paul Freund, speaking of Justice Brandeis’s approach to issues, called “morality of mind.”
