Once again, as in the days of the New Deal, the Supreme Court is the center of a vigorous national debate. But the issues now are different from those which agitated the country two decades ago, and the participants have by and large reversed their roles. Then it was the liberals who led the attack against the Count, arguing that a tribunal vested with the power of judicial review was essentially undemocratic, for thus public opinion could be overridden by a body of men neither elected by nor responsible to it; that the Court was acting as a legislative as well as a judicial body, making as well as declaring law; and that it had generally used this legislative power in a reactionary way, to protect “property rights” rather than “human rights.” Now, however, it is the conservatives who are primarily discomfited, because the controversial issues before the Court, as Alan Westin has shown,1 no longer concern matters of property but civil liberties and civil rights. The conservatives now argue that the Court, allegedly in the control of liberal Justices, is so concerned to protect individual liberties and civil rights that it neglects important dangers to our national security, such as Communist subversion, and also that it has impaired states’ rights in such areas as segregation.
But it is not only conservatives who are criticizing the Supreme Court today. Such a liberal as Professor Herbert Wechsler of Columbia Law School, for example, has been troubled by the theory which the Court evolved to justify its rulings in the desegregation cases. Other liberals feel that the Court stood on firmer ground in civil liberties cases when it avoided judging substantive questions and, instead, secured the release of defendants merely by insisting on the observance of the rules of fair procedure. Still other liberals—including Dean Erwin Griswold and Professor Paul Freund of Harvard Law School—declare that the Court’s work in recent years has been marked by a very serious decline in judicial craftmanship.
Taken together, these criticisms constitute a formidable indictment; and the Court may not escape unscathed from the attempts now being made in Congress and elsewhere to limit its powers and correct its “erroneous” decisions. Whatever the results of this battle, however, what seems least likely is an attempt to overcome what Professor Walter Berns of Cornell holds to be the Court’s most serious dereliction of duty: its failure to promote “virtue.”
In his book, Freedom, Virtue, and the First Amendment (Louisiana State University Press; 264 pp., $4.00), Berns argues that it is justice, rather than freedom, which is “the central political virtue.” The Court’s primary business is to mold men’s characters, to educate the citizens, by interpreting the Constitution and the laws in such a manner as to make them conform to the canons of “natural justice.” It is sheer foolishness, Berns maintains, to pretend that judges can secure justice by applying the standards of the Constitution or statutory law. They (and we) must first repudiate all modern, and especially liberal, notions about the nature of freedom; for such notions represent a defection from the great truths of classical political philosophy. The function of law is to direct the inner life of man so as to produce right conduct; and only if the Court’s love of virtue surpasses its love of freedom, Berns says, can we hope to achieve a just society.
This conception of law, freedom, and the work of the Court has had little impact on the legal profession or on political practice. Nevertheless, Berns is significant—not as an interesting if isolated critic of American constitutional law, but rather as a representative of the neo-conservative and anti-liberal camp typified by such otherwise disparate figures as Leo Strauss and Walter Lippmann, Eric Voegelin and John Hallo-well, Bertrand de Jouvenel and, in lesser degree, Hannah Arendt.
What unites these very different thinkers is a deep suspicion of most liberal assumptions. Berns is, strictly speaking, a member of Professor Strauss’s particular school of natural-right philosophy; yet his attack on the Supreme Court, which he views as an instrument of liberal politics, becomes meaningful only in the context of the much broader assault on modern liberalism. Here, as it were, is a case study of the rather vague and unworldly neo-conservative philosophy being applied to a definite, limited area of public life, the “new” scholasticism employed to judge current political issues.
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The neo-conservative indictment is essentially a repudiation of one of the major assumptions of liberal thought—namely, the belief that the ordinary man is sufficiently intelligent and informed to be an able judge of his own best interests. The truth is, however, that man is part of the natural order of things; he occupies a place appropriate to his nature and must perform those duties necessary to maintain that system of order. liberalism’s mistaken view of the nature of man in society, argue the neo-conservatives, leads to two major fallacies: freedom rather than virtue, rights rather than duties, becomes the ultimate political value; and the rule of wise men is subordinated to that of public sentiment. As a result, in a democracy philosophy becomes the slave of public opinion when it should be its master. Most of the disasters of recent decades—or indeed centuries—can be traced to this condition, the neo-conservatives argue.
Although neo-conservatives generally use the words “liberal” and “freedom” in a disdainful and pejorative sense, they do not reject these terms entirely but sometimes invest them with quite different meanings. Thus Leo Strauss, in an article in the Review of Metaphysics (March 1959), distinguishes between classical or “true” liberalism, on the one hand, and modern or “perverted liberalism,” on the other. “Originally,” he writes, “a liberal was a man who behaves in a manner becoming a free man as distinguished from a slave.” But how does a free man behave? He is respectful of and submissive to authority; he does not, like “perverted” liberals, forget “quality, excellence, or virtue.”
Similarly, when Professor Hallowell praises freedom, he does not mean freedom as the absence of restraints, the freedom to do what one wants; rather he means “true freedom” or rational choice, which “requires both knowledge of the good and the will to choose the good when known” (The Moral Foundation of Democracy). Such knowledge, Hallowell emphasizes, derives not from man but from God. Freedom, therefore, is a choice which accords with God’s will; for a secular theorist like Strauss, a choice which accords with the dictates of natural right. For neither writer does freedom involve a choice to act “wrongly.” Thus, in somewhat Orwellian fashion, restraint becomes freedom; for freedom is now defined not as doing what you want to do (or think you want to do), but what you ought to do, what God (or nature) commands you to do, and what, indeed, you would do if you could apprehend the truth.
All this, of course, implies the existence of a body of absolute truth. And, indeed, the neo-conservatives, whether of a natural-law (religious) or a natural-right (secular) orientation, all appeal to moral principles which are external to any political or legal principle and which are deemed to possess a higher validity. By natural law or natural right, they have in mind a conception of rights and duties which are derived from and which express the principles of human nature itself. There is, they hold, a rational order in which all natural beings, including man, have a fixed and ascertainable end. This natural order exists only to be discovered, and when discovered to be obeyed. In Strauss’s words: “All natural beings have a natural end, a natural destiny, which determines what kind of operation is good for them. In the case of man, reason is required for discerning these operations: reason determines what is by nature right with ultimate regard to man’s natural end” (Natural Right and History).
The contention that nature is indeed rational (rather than essentially chaotic) is not, however, a self-evident truth. If it is to be more than what Walter Lippmann, in The Public Philosophy, calls a “necessary assumption,” the truth of nature’s rationality must be established by the same objective standard, by the very principle of reason, to which natural-right philosophers otherwise appeal; in other words, the assumption that there is a rational order must itself be sustained by reason. But it is precisely on this point that theological and secular neo-conservatives divide. The former contend that it is impossible to prove any explanation of the universe without invoking an objective reality that is outside that system, i.e., God. The latter assert that the very principle which explains the universe, reason, constitutes the objective proof of its rationality. The theological argument is a direct appeal to faith. The argument of the secular natural-right philosophers is rather circular, but it also appeals, ultimately, to an alternative faith.
Lippmann, while he admits the need for the demonstration of the existence of the rational order, is likewise compelled to admit, with Strauss, that its principles cannot be verified empirically. He seeks instead “to repair the capacity to believe,” and asserts with respect to these principles that “we have to believe in them.” Obviously, an appeal to man’s will to believe is not a very convincing demonstration of the truth of what is believed.
Attempting to circumvent this difficulty, Lippmann and Strauss invoke the authority of the “rational” and “decent” man. Such men, Lippmann holds, can have no doubts about the validity of the principles of natural law. “They are the laws of a rational order of human society—in the sense that all men, when they are sincerely and lucidly rational, will regard them as self-evident. . . . They are the terms of the widest consensus of rational men in a plural society. They are the propositions to which all men concerned, if they are sincerely and lucidly rational, can be expected to converge. . . . The highest laws are those upon which all rational men of good will, when fully informed, will tend to agree” (my italics). This, unfortunately, tells us little about the content of these highest laws. It also begs the very point at issue, namely, what is the test of the rational and decent man? Apparently he is one who is able to perceive the principles of the rational order—another circular argument.
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When neo-conservatives indict liberalism for its philosophical relativism, for holding value statements to be matters of preference rather than of scientific proof, so that it cannot say with any objective certainty whether anything is good or bad; or when they attack liberalism’s failure to apprehend and build a political order on the “true” principle of aristocracy, hierarchy, and degree, they imply that their own judgments rest on established metaphysical truths. Yet how established are these “truths” when Strauss, for example, rejects God, Voegelin and Hallowell embrace him (so long as he is the Christian God), and Lippmann tries to bring the two factions together under a common umbrella labeled the “traditions of civility” or the “public philosophy”?
When neo-conservatives assert that government should be entrusted to the superior group of “rational and decent men,” they imply that there is a body of such men who can readily be recognized. Yet, theorists of aristocracy have always been at loggerheads over the question of who are, politically, the best men. Intellect, wealth, strength, race—these are but a few of the qualities that have been suggested as criteria for defining the best. But nobody has yet demonstrated the connection between any of these “virtues” and effective political leadership. And even if it were possible to decide who the best men are, there is still the question of how they shall be put in power, and how removed if they cease to be best. One can only sigh over the answer Salvador de Madariaga gives to such questions:
No one appoints, elects, or chooses the aristocrat. He knows himself to be one because he hears himself called to his high and arduous endeavor by an internal voice—his vocation. There is no voice with more commanding power; none which can obtain more punctual and loyal obedience. Chief and soldier within one soul, under one will, within the same executive body, the aristocrat obeys has vocation without any possible excuse or evasion. He is his own slave. . . . He is his own police, judge, and executioner (Anarchy or Hierarchy).
The difficulties here are all too patent. Who is to decide between the claims of competing “aristocrats”? What if the aristocrat does wrong (as aristocrats have been known to do), but refuses to arrest, imprison, or execute himself? We cannot look to another aristocrat for the remedy, because by the logic of this construction only the aristocrat can judge himself. Yet the most cursory reading of history reveals that responsibility only to oneself, when combined with power over others, is not a sufficient brake on man’s capacity to act unjustly toward other men.
This is why liberals, as John Stuart Mill argued in his Representative Government, look primarily to public opinion to prevent misgovernment. The ordinary man may not be the best judge of particular legislative enactments, but he can tell whether those who govern treat him badly or well. In the democratic state, all that is desired is that the ordinary man express his broad preferences and dislikes, that he announce whether the political shoe pinches or fits. He does this by deciding who is to govern. Through his periodic answers to this question, he also decides the question: to what general ends?
In the democratic state, philosophers (and theologians) are free to persuade public opinion to accept their findings; but since there are competing philosophies and theologies, democracy refuses, very properly, to surrender political control to a single “true” philosophy or faith. Instead, it compels them all to compete, to expose their teachings to adverse criticism, and to become a part of “the prevailing opinion if they can.
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Professor Berns, as a disciple of Strauss, holds that this democratic or liberal idea is essentially barbarous. His book on the Supreme Court is an indictment of its alleged service to liberal conceptions of society. The proper role of a judiciary, he maintains, is to dispense justice, and this the present Supreme Court, with its concern for civil liberties, has not done.
Freedom, Berns argues, is not a right but a privilege. “No citizen,” he asserts, “has a right to free speech, whatever the Court has said to the contrary in the past or will say in the future” (Berns’s italics here and following). The citizen has only the obligation to do what is right, for “the purpose of law is and must be to promote virtue, not to guarantee rights of any description.” Freedom should be extended only “to those we can trust not to misuse the privilege,” to “citizens of good character.” It is a mischievous liberal idea that freedom means the freedom to do as one may please; this permits evil men to do evil deeds. Freedom is, rather, what John Winthrop proclaimed it to be: “a liberty to that only which is good, just, and honest.”2 In Berns’s terms, it is the “freedom to do good and speak the truth.” Hence the First Amendment must be reinterpreted to read: “Congress shall make no law abridging the freedom of good speech.” Commitment to the democratic idea of civil liberty is not enough—indeed, “freedom is not enough”—for “civil liberties guarantee [only] peaceful change, not change for the better,” and this is an ignoble ideal.
Berns argues that the judge deciding cases involving freedom of speech requires, at the outset, a moral principle by Which he can distinguish “good” speech from “bad.” This moral principle cannot be freedom, for “freedom in itself has no intrinsic merit.” It cannot be the liberal faith in full and free discussion, which is a “formalistic” and “empty process”; the liberal who exalts discussion is indifferent to the merits or truth of competing claims, and his faith in discussion is “unsupported by reason.” Nor, finally, can the judge’s moral standard be the principle of democracy, which in Berns’s view rests on the passing whims of public opinion; “that the noxious doctrine might win over the democratic doctrine is a possibility . . . liberals do not entertain.”
The only legitimate moral principle, according to Berns, is virtue or justice; and justice, Socrates taught, consists in giving each man his due. The judge, therefore, “must not only know the right, he must also possess the rhetorical skill to explain, teach, and convince in order to do the right.” He must be a teacher and legislator, not an arbitrator or referee. To achieve justice, the judge must recognize that “the formation of character is the principal duty of government.” Law must concern itself with “the inner life of man”—not, as liberals would have it, with external behavior. This, of course, implies censorship, and Berns, though he admits that it is dangerous, insists that censorship is necessary. For, just as “civil society is impossible if every man retains an absolute freedom of opinion,” so moral education is impossible without some censorship. “Only if the community is made up predominantly of citizens of good character, who trust one another, is freedom not only possible but desirable.”
In this manner, then, we come down from the new scholasticism to such mundane matters as the Communist party and allegedly obscene novels and motion pictures. Berns’s position on these matters is the predictably conservative one, however much it may differ from that of other conservatives in other respects. It is useful, therefore, in the light of rather widespread support for this position, to examine its theoretical underpinnings.
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Let us consider, first, Berns’s notion that justice—giving each man his due—is the proper end of government. Although this teaching has persisted for some two thousand four hundred years of human history, it is deceptive political doctrine.
To begin with, to conceive of justice primarily in terms of specific right acts—rather than as a political arrangement or regime—is to focus one’s quest for justice not on institutions or processes but on the rule of allegedly wise men; when morally right acts are the chief concern, only those Who know what is right, and what should be done to achieve it, ought to rule. However, the quest for philosopher-kings, as Socrates well knew, is a Utopian one. No actual “aristocracy” has in fact been based on the principle of merit. The real choice, instead, has always been between systems that tend to oligarchy and those that approximate some degree of democracy.
To secure justice, then, what matters most is a political regime that curbs, so far as humanly possible, the mistaken or oppressive acts of temporary rulers. In this sense, justice is inherent in the political arrangement of a people, rather than in the specific acts of officials. It is no sufficient indictment of a democratic or judicial system to point to “bad” policies or decisions; for no government or court is infallible, and the most democratic system may enact some unjust laws. What is necessary is chat the system contain the machinery to correct these injustices.
By making justice the supreme, even the sole, end of government, Berns attempts to identify ethics and politics. Yet Socratic justice can be at best only one of the many virtues of social institutions; the law must look to order and system as well. Socratic justice apportions and divides; it seeks not to reconcile opposing claims but to give each its due. Yet a state must do more than this: it must establish rules of conduct which relate to the general convenience (and which may not themselves be based on ethical distinctions at all—e.g., traffic regulations) and the common good. It must create a political order that balances or harmonizes competing claims, lest some portion of the community be alienated and estranged. And because a democratic state in particular seeks always to strengthen the bonds of social cohesion, it must distinguish, rather than identify, ethical ideals and political rules. The state need not, and should not, be the arbiter of all moral issues.
As for giving each man his due, what is one’s due? How is that due to be determined? One looks in vain in Berns’s book, and in other works by neo-conservatives, for a meaningful definition. Like Lippmann and Strauss, Berns appeals to the knowledge of decent and reasonable men. They “know” what is one’s due because they are decent and reasonable men, and they are decent and reasonable because they know it, etc., etc.
The liberal view of freedom, which Berns rejects, is that of an ordered system of liberties and restraints—not some absolute freedom or non-freedom, but rather a choice among particular liberties. We value the liberty of a pedestrian to cross the street in safety more than we do the liberty of an automobile driver to drive his vehicle without any limitations; hence, traffic lights and speed limits restrain the latter’s freedom. In the liberal view, the problem of freedom in the real world is to decide which from among the many diverse liberties we most prize, and to impose appropriate restraints in order to secure those liberties.
Berns argues that the liberal conception of freedom exalts the individual man at the expense of the community. Yet even a 19th-century liberal like Mill contended that the problem of freedom was twofold; freedom from the arbitrary controls of government, and also freedom from the arbitrary restraints of private powers. Liberals can, and do, support governmental restraints which curb the potential oppressive acts of private powers, for a governmental restraint on X, who would otherwise restrain Y, often conduces to the greater liberty of Y. The real question is to decide which restraints are to be imposed, by whom, and for what purposes—and that question is the very substance of politics in a democracy.
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Berns terms it “positively un-American to speak of the American democracy as a mere process of reaching political decisions, or more specifically, as a regime based not on a moral principle but on full and free discussion.” Yet the essence of the American democracy is precisely this commitment to a process. Authoritarian states can have stated ends to which all are required to submit. Democratic states, because they recognize that men seek to pursue different ends, build instead on a method through which conflicts can. be negotiated. The alternative to such a process, to the idea of peaceful change which Berns rightly ascribes to our conception of civil liberties, is the authoritarian suppression of change, or the acceptance of mutual slaughter as a technique of violent change. Thus, in a democratic state free speech must be regarded not as a privilege but as a right—not a “natural right” in Berns’s sense, to be sure, but a right essential to the very nature of democracy. Only if men are free to speak, to persuade others to join with them in pursuit of other freedoms, can we hope to achieve a just resolution of conflicts as to which freedoms are to be secured. Freedom of speech, that is to say, is the necessary means of determining our other freedoms, if we are not to surrender this determination to a group of allegedly superior men.
It is preposterous to insist, as Berns does, that liberalism must argue for the unfortunate statement of Justice Holmes that the test of truth is its ability to win acceptance in the competition of the market place. Popularity is not a guarantee of truth; all that liberalism stands for is the principle that in the absence of final truth, freedom of expression is essential—lest our opinions harden into that rigidity which authoritarians mistake for truth. Freedom of speech is necessary not because it assures truth but because it makes possible the correction of error.
Similarly, it is preposterous to hold, with Berns, that liberals close their eyes to the possibility that the “noxious doctrine” may win out in the free competition of ideas. The more important liberal thinkers—men like Morris Cohen, John Dewey, R. M. Maclver, and Bertrand Russell—live with a sense of tragedy, a realistic perception of the risks attendant upon a free society. They see, as the neo-conservatives do not, that growth and, let it be added, virtue, come only from free choice. And if men are to be free to choose, they must be free to examine alternative possibilities, and to act on the basis of their own best judgment.
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Given Berns’s views on the nature of freedom, justice, and government, how does he conceive the role of the Supreme Court in the American democracy? He wants the judge (1) to assume the role of legislator, and subordinate even the Constitution to “justice”; and (2) to control, through appropriate censorship, the inner life of the citizens so as to develop “good character.” If the Supreme Court were to attempt these things, it would cease to be a court and would become a body of philosopher-kings. Such an attempt is hardly feasible politically, but it would also be highly undesirable—even if those philosopher-judges held more advanced social views than those of Professor Berns.
If an elected assembly is deprived by a censorial interventionist judiciary of its power to make the major policy decisions of government, it becomes a subordinate rather than a primary power in the process of legislation. It also, at the same time, loses its creativity and sense of responsibility. Why, in those circumstances, should the legislature reflect seriously on the pressing issues of the day? Why, indeed, should it think at all? Surely the Count will do all that needs to be done.
Berns nowhere considers the consequences to the American system of government of his argument for judicial, rather than legislative, philosopher-kings. He assumes a judiciary with a will of its own and the power to implement that will. Yet in all the cases that Berns cites, the Court acts only when the issues are brought to it; the Court does not initiate actions. To be sure, when the Court acts on cases brought before it, it in some sense establishes policy—either negatively, by telling the Congress and the Executive what they may not do, or positively, by interpreting statutes so as to spell out the nature and limits of legitimately exercised power. But such power, great as it is, constitutes no more than the controls of a nocturnal council; it does not convert the Court into a daytime government. For the Court to become such a government, to become a true body of philosopher-kings, the American system of government would have to be transformed. It seems curious that Berns never recommends, or confronts the consequences of, such a transformation.
In general, Berns tends to obliterate the necessary distinction between the role of a legislator and that of a judge. No one would seriously deny that a judge, in interpreting law, makes law; but there is a difference between law-making within the contours of policy set by high constitutional compromises, and law-making without regard to the legislative will. As the English system exemplifies even more than does the American, the legislator and judge are different persons holding different offices with different duties. Legislators must, in principle, look forward and promulgate rules designed to govern the conduct of men in future relationships. Judges, on the other hand, must look backward, to see whether men have broken rules already established; they can punish men only in terms of penalties assigned by the law for violations of those rules. American judges occasionally—and, because of judicial review, to some extent necessarily—confuse the two functions of judge and legislator, but to have them assume a completely legislative role, as Berns proposes, is to remove all certainty from the law. It is to convert the law into a series of ex post facto edicts that reflect no more than the changing whims of irresponsible judges.
It seems odd that a neo-conservative like Berns, who might be expected to approach traditional institutions with piety, if not reverence, should be so cavalier when it comes to the Constitution. Yet he writes: “The purpose of the Supreme Count cannot be described as making justice conform to the Constitution. It is rather to make the Constitution conform to justice.” Now judges in the American system take an oath to support the Constitution, not Berns’s conception of justice; and it would be not only presumptuous, but unlawful, for those judges to do as Berns demands. In this sense, his proposals are not at all conservative, but quite reactionary.
Reactionary, too, are Berns’s views on the necessity of censorship to bring about right thinking. To control inner belief through law, as Berns proposes, is not only to confound the realms of ethics and politics; it is effectively to prevent changes in the law through criticism from below. For if men are so educated, to use Berns’s terms, “that suppression and persecution become unnecessary,” it can only be because their minds have been denuded of all creative and dissident ideas. This demands both positive instruction in the right, as Berns conceives it, and the exclusion of ideas that might lead people to entertain and act on notions that are deemed wrong.
Berns is so concerned to censor “evil” publications that he slights, even as he grants, the dangers inherent in censorship—in particular, that the censors may be bigoted and incompetent men. This becomes ironic when he condemns the judges whom he would make philosopher-kings for approving the sale of certain “obscene” publications like Headquarters Detective and disapproving Edmund Wilson’s novel, Memoirs of Hecate County. And what shall we say of those censors who would prohibit from the mails D. H. Lawrence’s Lady Chatterley’s Lover and Aristophanes’ Lysistrata, the latter (if we are to believe our Postmaster) because certain passages are “well calculated to deprave the morals of persons . . . and almost equally certain to arouse libidinous thoughts in the minds of the average normal reader”?
For the Court—or government generally—to assume the obligation of forming “good character” is to move far beyond its proper province. For this is to invade die sphere of social prerogatives—of the family and religious congregation and voluntary associations of every sort—and to transform a democratic into a totalitarian state.
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I have not dwelt here on the more technical aspects of Berns’s argument, in particular his use of case materials; for these have received their appropriate corrections in the legal journals.3 Nor have I considered the important application of Berns’s argument on freedom for “good speech” only, in which he calls for the outright suppression of the Communist party. To point out his misunderstanding of Marxist teaching, and his failure to draw the necessary distinotion between the lawful activities and beliefs of that party, on the one hand, and its unlawful practices, on the other, would require more space than is warranted here. But these and other deficiencies4 testify to the fact that Berns’s moral earnestness is no substitute for empirical knowledge and logical reasoning.
This is not, however, to say that Berns’s book lacks merit. Its value is not as a work of constitutional law, but as a statement of a significant—though relatively small—school of political philosophy that is currently challenging the liberal conception of society. Berns’s book also reminds us that some of our Justices have not been wise men, and that some of the Court’s decisions have actually been foolish. Finally, it emphasizes once again that judicial review is an undemocratic institution; but here Barns draws not the inference that judicial review should therefore be abandoned, but rather the contention that it should therefore be retained: “for judicial review provides virtue with, as it were, a final chance.”
What Berns and other neo-conservatives value above all is a regime that would reduce the bulk of humanity to the status of children, if not of subjects or slaves. Under the pretense that they are being ruled by a body of wise men, of philosopher-kings, he would have citizens who lack “good character” and the “right morality” restrained from exercising the democratic rights of citizenship. He would manipulate and coerce them so as to make them “truly free.” And his conception of “true freedom” is essentially that of submission to the true religion, a civil or secular morality in which Nature is substituted for God.
We are fortunate that no Justice has yet succumbed to the appeals of this “new” scholasticism. If one should do so, the winds of doctrine that now beset the Supreme Court would be so agitated as to threaten the very foundations of our democratic system; for it is one of the striking paradoxes of neo-conservative thought that its Utopian view of “justice” always seems to lead to a narrow view of civil liberties.
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1 See “Liberals and the Supreme Court,” in the July 1956 COMMENTARY.
2 Some additional sentences from Winthrop's argument, not given by Berns, are revealing. Winthrop says: “This liberty is maintained and exercised in a way of subjection to authority; it is of the same kind of liberty wherewith Christ hath made us free. The woman's own choice makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage; and a true wife accounts her subjection her honor and freedom, and would not think her condition safe and free, but in her subjection to her husband's authority” (from A Speech to. the General Court, July 3, 1645).
3 See, for example, the reviews by Carl A. Auerbach in the Northwestern University Law Review (March-April 1958) and Kenneth L. Karst in the Harvard Law Review (May 1958).
4 A few observations on Berns's methods would seem in order, in view of the pride which neo-conservatives take in their scholarship and rigorous logic:
- Berns, a True Believer, sees complex questions primarily in simple and extreme terms. No sophisticated student of American constitutional law, for example, would pretend that a case is susceptible of only one interpretation; yet time and again Berns cites a judicial ruling, e.g. the Murray Winters obscenity case, as if the judge were there concerned with but a single issue—bad books—to the exclusion of other issues, such as requiring the New York legislature to draft careful, non-blunderbuss legislation.
- He is frequently guilty of distortion. One of his key propositions, for example, is that jurisprudence is concerned with “knowledge of what is right and how that right is to be done. He seeks to establish this by quoting the definition given in the Oxford Dictionary: that “jurisprudence is ‘knowledge of and skill in the law or the right.’” But then, though he warns us of the need to emphasize each element of this definition, he promptly omits the terms “law” and “or” so as to make the definition refer only to “the right.” Later, he renders the quotation from the Oxford Dictionary differently, as “knowledge of and skill in law,” but jus, he tells us, means law or right, and since lex means law, jus should be rendered as right, or the right. Thus Berns achieves a linguistic leap that enables him to condemn jurists for being what they are—practitioners in or students of law—instead of the philosophers that he wants them to be. (My own copy of the Oxford Universal Dictionary—3rd ed. revised, 1955—defines jurisprudence as “knowledge of or skill in law.” The word “right” nowhere appears in the definition.)
- Berns plays fast and loose with the rules of argument. To support his contention that judges must concern themselves with moral considerations, for example, he asserts that “judges cannot be amoral because law is not amoral.” But he immediately adds, “Amoral law is bad law.” Now clearly, if law is not amoral, there cannot be, in this sense, bad law; while if there is amoral law that is therefore, bad, it is false to say that law is not amoral. What is involved here and elsewhere, of course, is Berns's confusion of the actual and the ideal; when he writes “is,” he means “ought.”
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