To the Editor:
I recently moved to Denver, the city where Timothy McVeigh was just convicted of his appalling crimes. For that reason, as well as many others, I was grateful for Gertrude Himmelfarb’s essay on patriotism, “For the Love of Country” [May], not just for its warning that the extremism of Left and Right feed off each other, but, more generally, because of its reminder that statecraft can be a noble calling: if our virtues are merely domestic and local, we rob ourselves of one of humanity’s chief avenues for transcendence in the selfless devotion to a cause greater than ourselves.
I was troubled, however, by her repeated use of the word “could,” as in “a sensible tax policy could encourage two-parent families,” or “divorce laws could be devised to deter the break-up of the family,” or “the courts could support . . . the rights of communities to enforce anti-pornography, anti-obscenity, or anti-abortion ordinances.” It might seem like a caviling pettifoggery to wonder why the relevant word here isn’t “should” instead of Miss Himmelfarb’s seemingly insouciant, quasi-optative “could,” but my point is a wider one. In my opinion, the single piece missing in her analysis is the role of the courts in her writ of attainder against the bureaucratic bullying she so rightly laments.
A judicial power grab entails something rather more ominous than government by bureaucratic fiat, which can be, at least theoretically, corrected through our constitutionally protected right of “petition for a redress of grievances.” But if the judiciary has ambitions to usurp the role of legislatures, the only avenue open to it is to read fundamental law into positive law. It is precisely that move which short-circuits democracy, for it is the whole purpose of fundamental law to be universal and therefore non-negotiable. In other words, one can hardly aspire to the wider virtues of statecraft if the tools of that craft have been taken from us by a know-it-all judiciary, one that even moderates are beginning to suspect has run amok.
Edward T. Oakes, S.J.
Regis University
Denver, Colorado
_____________
To the Editor:
Gertrude Himmelfarb’s essay presents the most concise and accurate understanding to date of the implications of the renewed call for the recovery of community in America. She is absolutely right on target that “Civil society . . . is a two-way street. It takes us back to our roots, to our nearest and dearest. But it should also take us forward to our nation and country.”
There is one area, in my opinion, where her brilliant essay falls short, however: communities arise not from the top down but from the bottom up. Communities cannot be rationally planned; they arise spontaneously and cannot be mandated or created by an act of national will. Thus, efforts by the federal government, like the Clinton-Powell call for an army of volunteers, will not recreate communities but, rather, weaken what is left of them and replace them with a stronger and more invasive government, one that will, as Miss Himmelfarb says, assume “the domestic, nurturing tasks of parents and families.”
The best course of action by the government is to do no harm. Perhaps doing nothing and allowing the natural formation of communities without the aid or sponsorship of the “nanny state” would be the wisest course of action for the future of our nation.
Clifford A. Bates, Jr.
Central Connecticut State University
New Britain, Connecticut
_____________
Gertrude Himmelfarb writes:
“Could” or “should” (or, for that matter, why not “would”?)—I’m flattered that Father Oakes gave my article so close a reading. I think I could (there goes that “insouciant, quasi-optative” mode again) make out a case for each of those words—but I won’t.
The judiciary, however, is a serious matter. In fact, I did refer to the courts in the sentence he partially quotes: “Or the courts could support (as they did for much of our history) the rights of communities to enforce anti-pornography, anti-obscenity, or anti-abortion ordinances.” And in the following sentence as well: “Or, if the courts are recalcitrant, the legislature could act more vigorously to achieve these ends.” I agree with Father Oakes that an imperious judiciary is a grave threat to democracy, and I addressed that issue earlier in COMMENTARY, in the February symposium, “On the Future of Conservatism.” The subject of my present article, however, is the invasive bureaucracy of the welfare state, which is yet another threat to democracy.
I also agree with Clifford A. Bates, Jr. that “do no harm” is a wise principle of government, and that the government does harm by interfering with the natural development of communities. But this does not mean that the government should do nothing or that communities on their own can do everything. In our efforts to discredit and dismantle the “nanny state,” we must be wary not to discredit and subvert the state as such. One of the unfortunate consequences of the current welfare state is that it tends to do just that—to illegitimize legitimate government.
_____________
