Writing more than a decade before most of the world had ever heard the name Barack Obama, our dear, departed friend Robert Bork noted that President Bill Clinton had proposed raising taxes on “the rich”—not further defined. Taxes would go up even though credible analyses showed that raising them would not increase government revenues.
As Judge Bork ruefully admitted, he had taught Bill and Hillary Clinton constitutional law at Yale Law School—although to hear the Judge tell it, he was teaching while they happened to be in the room. Well, President Clinton may not have been much of a constitutional scholar, but he did have an acute understanding of the public mood and the political moment.
He knew how to read a poll.
In this instance, polling indicated that a substantial portion of the public favored higher taxes on high-income earners even if imposing them would not help anyone else—instead, it would merely take high earners down a few pegs. Since the only motivation for this could be envy, one of the seven deadly sins long thought a cause for shame if publicly revealed, Bork realized it might seem “surprising that so many people would admit harboring that emotion.” But he found the answer to this paradox in the work of Helmut Schoeck—an Austrian sociologist who saw envy as the driving force of social behavior in the West. As Schoeck put it:
Since the end of the Second World War . . . a new ethic has, astonishingly, come into being, according to which the envious man is altogether acceptable. Progressively fewer individuals and groups are ashamed of their envy, but instead make out that its existence in their temperaments proves the existence of “social injustice,” which must be eliminated for their benefit. Suddenly it has become possible to say, without loss of public credibility and trust, “I envy you. Give me what you’ve got.”
It bears emphasizing that these words, and Bork’s keen analysis of them, were written over a dozen years before Senator Barack Obama announced that he favored “raising the capital gains tax for purposes of fairness”—even if doing so meant punishing 100 million Americans who had investments of some kind in the financial markets, and even if doing so meant a decrease in the revenues available for redistribution in the social welfare programs Obama was then campaigning to expand.
That campaign was for the presidency in 2008. Obama won that election by as close to a landslide as we have seen in American presidential politics in a generation: over 6 percentage points (53 to 46 percent) and nearly 10 million votes. Obama’s well-known leftist leanings aside, it seems he, too, knew how to read a poll.
There is no doubt our political institutions have been corrupted. We must concede, though, that corruption has been pushing on an open door. Our political institutions reflect the state of our culture. We, as a people, have long been a willing participant in their corruption.
Of course, the rule of law—the rights to due process and the law’s equal application to everyone—is supposed to be our protection from lawlessness and other forms of corruption in our political institutions. On that score, it is important to note that 2015 was the octocentennial of King John’s capitulation at Runnymede. There is cause, then, to ask: what we are celebrating?
Magna Carta is the putative enshrinement of the principle that no one, not even the ruler, is above the law, and that the written law acts as an enduring safeguard against the ruler’s excesses. But the legacy sits uneasily with the history. Before the wax was dry on King John’s seal in June of 1215, he renounced Magna Carta. He did this with the dispensation and encouragement of the pope, who essentially told him the written law was no obstacle to the pursuit of their mutual interests.
It was just the other month that Pope Francis and President Obama met to compare notes on effecting amnesty for America’s 11 million illegal aliens. I suppose we learn, yet again, that there really is nothing new under the sun.
There has been no shortage of Magna Carta kitsch during the eight-hundredth anniversary year. The New Yorker magazine reports, for example, that there is for sale online an “ ‘ORIGINAL 1215 Magna Carta British Library Baby Pacifier,’ with the full Latin text, all thirty-five hundred or so words, on a silicone orthodontic nipple.” Well, that’s fine, I suppose. The question for us, however, is whether there remains any vestige of Magna Carta’s rule of law principle.
In the United States, the great charter had more influence on the 1776 Declaration of Independence than on the federal Constitution written eleven years later. Indeed, the framers of the Constitution initially rejected the addition of a Bill of Rights—the part of the Constitution most reminiscent of Magna Carta. It seemed to them irrelevant in a republic where the people were sovereign and, therefore, no longer in need of reserving rights against a king.
Yet the Bill of Rights was appended out of political necessity. As a condition of ratifying the Constitution, many of the states—including several which venerated Magna Carta in their own legal codes—demanded the inclusion of the Bill of Rights as a more explicit bulwark against central government power. Nevertheless, despite their being bound up in history, precious little of the Bill of Rights is actually traceable to Magna Carta. As Madison himself complained, it failed to protect such fundamental liberties as freedom of conscience and of the press.
Still, if anything may be said to be the linchpin of the Bill of Rights, it is due process of law. That concept, indisputably, was drawn from Magna Carta’s Article 39. It provided that:
No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go send against him, except by the lawful judgment of his peers or by the law of the land.
In The History of English Law Before the Time of Edward I, the scholars Frederick Pollock and Frederic William Maitland proclaim that this provision of Magna Carta is as close to “a sacred text, the nearest approach to an irrepealable ‘fundamental statute’ that England has ever had.” And it is incontestable that, in the United States as in the United Kingdom, due process of law is our bedrock protection against official overreach—the principle that government may not infringe on our freedom without providing notice and a meaningful right to be heard.
Yet experience teaches that a lot depends on who is doing the hearing. Or, as the late Roy Cohn memorably put it, “Don’t tell me about the law, tell me who the judge is!”
Recall that the states insisted on a Bill of Rights, including the right to due process of law preserved by the Fifth Amendment, as insurance against interference by the central government in the day-to-day affairs of the states and their citizens. Yet it is precisely the due process clause, expressly applied against the states in the post–Civil War Fourteenth Amendment, that has stripped away much of their authority.
By the “incorporation doctrine,” the Supreme Court has resorted to the Due Process Clause to divest the states—redistributing their regulatory power to Washington. This has been done gradually and quite selectively, thanks to an institutionally corruptive practice: the crafting of self-consciously high-minded but hopelessly ambiguous interpretive standards. These become the self-made rules by which government decision makers—in this case, the judiciary—impose their institutions’ subjective notions of justice on the public.
As a result, rather than adopt the consistent and intellectually defensible position that either all of the Bill of Rights operates against the states, or none of it does, the justices pick and choose based on what seems to them “fundamental to our concept of ordered liberty.” Naturally, what they end up incorporating is their own concept of ordered liberty—which is why, for example, the guarantee against double jeopardy is in, but the guarantee of indictment by grand jury is out, even though both guarantees appear in the same sentence of the same Amendment.
The same sleight of hand explains substantive due process, another of the judiciary’s evolutions of Magna Carta’s rule of law. This doctrine, based on the fallacy that a guarantee of objectively fair procedure implies a guarantee of subjectively fair outcomes, enables courts to impose the legal profession’s pieties.
For all the grandiloquent talk about how life in a free republic would be intolerable without judicial recognition—actually, judicial invention—of these purportedly fundamental rights, the legal profession’s pieties can be awfully trendy and fleeting. Substantive due process was, for example, invoked to protect what were said to be the fundamental property rights of slave owners in the notorious Dred Scott decision—a bump in the road to Progressive Nirvana that the Lawyer Left prefers not to discuss.
Up until a few years ago, substantive due process had been discredited as judicial tyranny masquerading as jurisprudential rigor. The doctrine has come roaring back, however. It now regularly enforces what Justice Antonin Scalia derides as the Supreme Court’s “Sweet Mystery of Life” dictum, which holds that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In June, the justices invoked this, shall we say, elastic guidance on self-determination in order to deprive the people of their time-honored right to determine who may marry under state law. Instead, same-sex marriage was imposed on the nation by the fiat of five unelected lawyers in robes.
The lesson here is obvious: the liberty ostensibly safeguarded by due process often counts for less than the government institution that gets to decide what process is due. Consequently, if our institutions are corrupted, whether by ideology, the spirit of the times, or some other cause, then the Constitution’s written guarantees of liberty are not worth the parchment on which they are promised.
So is the corruption of our institutions inevitable?
Regrettably, Judge Bork, in the course of a life steeped in the law, came to believe it might be. There were two reasons for this bleak forecast: the likely effects of liberty extremism on culture, and the legal enforcement of radical egalitarianism. In this, as in much else, he has proved prescient.
To consider liberty-extremism, we must return to the Declaration of Independence, the American document most influenced by Magna Carta in the compelling case it states for liberty over tyranny. In a soaring flourish more suited to a rally cry than a governing framework, Jefferson wrote that the rights to life, liberty, and the pursuit of happiness were among the unalienable rights of men as endowed by their Creator.
Now, a man caught robbing a bank quickly learns that his unalienable right to liberty turns out to be quite alienable. Our rights do not exist in a vacuum; our liberty is forever in tension with our security. Clearly, these commonsense truths did not escape men as sophisticated as Jefferson and the founders. The framers wrote a Constitution, after all, that sets forth many restraints on life, liberty, and the pursuit of happiness.
So what are we to glean from the Declaration’s rhetorical excess? What Judge Bork took away was that the founders were men of the Enlightenment, of which the Declaration is a product. The Enlightenment emphasized the individual as the building block of society.
That is all well and good in that it is individuals who create the social organizations that sustain the order, morality, and discipline required for a free republic to thrive. Yet Enlightenment optimists—among whom Bork (quoting Robert Nisbet) counted Jefferson, along with Locke, Montesquieu, and Adam Smith—believed the moral and psychological attributes of these social organizations were actually the innate and timeless qualities of the individual. That is, the organizations—like churches, clubs, guilds, and the like—did not mold the man; rather, the good order they promoted reflected man’s natural attributes.
Bork argued that the optimists promoted individual liberty at the expense of social organizations—out of a calculation that good order would spontaneously result from a “natural equilibrium of economic and political forces.” But in reality, placing undue stock in the individual’s natural gifts causes these organizations to wane in influence. As they do, the culture they preserve degrades. Ordered liberty gradually devolves into chaotic libertinism. When other sources of authority have been denigrated, Bork concluded, only the government can control chaos. The result, inexorably, is an enhancement of state authority—of the power of government, in all its political machinations and dysfunction, to arbitrate the competing claims of individuals pursuing their very different ideas of happiness.
Where liberty is concerned, we live in the absolutism of Mill. Bork longed, instead, for the prudence of Burke, whose grasp of human nature called for balancing freedom with order and virtue. Once lost, these essentials are not easily recovered.
What about radical egalitarianism? The Declaration’s unalienable rights rhetoric proceeded from the vital premise that all men are created equal. Yet, the premise was ambiguous. It left for continuing refinement what legal privileges were implied by equality. It left for later resolution the palpable tension between equality, on the one hand, and individual achievement and the reverence for private property, on the other.
Bork noted that, already by the 1830s, Tocqueville was tempering his admiration for our democracy with the assessment that Americans loved equality more than freedom. This was ominous in that only government had the capacity to cure inequality. Unchecked, the craving for ever more perfect equality could lead to ever greater government coercion and, eventually, redistribution of wealth and power.
Following the Civil War, the Fourteenth Amendment made the enforcement of equal protection under the law a federal guarantee. By 1913, Progressive Era populism about the rich failing to pay their fair share finally ushered in the Sixteenth Amendment’s evisceration of constitutional bars against a graduated tax on individual income. Roosevelt’s “New Deal” and, later, Truman’s “Fair Deal,” conveyed the presumption that society’s deck is unfairly stacked and that government must remain ever vigilant to rectify inequality.
That gets us full-circle back to envy. Envy played an enormous contributory part in these developments, which have only accelerated in the last half-century. As a rational matter, the economy is dynamic. The “rich” don’t get that way by taking from those who have less. They grow the pie. Their success leads to greater overall prosperity, although no one would claim that prosperity is equally shared. Moreover, when government makes its leveling interventions, the redistribution of wealth does not promote the general welfare. It merely promotes the welfare of favored groups at the expense of other groups while disincentivizing achievement and undermining prosperity.
Yet, this is what the modern “free” society demands. Increasingly, and by the compulsion of law, it calls for equality not just of opportunity but of result and condition.
Tocqueville remarked that it was human nature for a man to believe he is just as good as everyone else. In a democracy, the law reinforces this conceit by explicitly recognizing each person’s equality and giving his vote the same weight as any other citizen’s. But because the Creator who makes us equal does not give us equal gifts, equality is always elusive and government can never do enough. The result? Judge Bork found it was perfectly diagnosed by the French political philosopher Pierre Manent:
But what [a man’s] heart whispers to him, and the law proclaims, the society around him incessantly denies: certain people are richer, more powerful than he, others are reputed to be wiser or more intelligent. The contradiction between social reality and the combined wishes of his heart and the law, therefore incites and nourishes a devouring passion in everyone: the passion for equality. It will never cease until social reality is made to conform with his and the law’s wishes.
It never will conform, but he and the law will never stop trying. That is not the rule of law; it is the use of the law as a political weapon.
Last year, I wrote a book about presidential lawlessness. There is enough of it that I could have added another volume or three in the ensuing twelve months. President Obama’s abuses of power are legion. His conversion of our political institutions and the rule of law into instruments of his eccentric social justice agenda is no longer a stealth project. He is quite open about it now that he has no more elections to worry about.
But remember: when he had elections to worry about, he won them—twice, and comfortably so. As of today, after nearly seven years, his job approval ratings hover close to 50 percent, with roughly as many Americans endorsing as condemning his policies and practices. The opposition party mounts no real opposition because they fear political blowback. They may be spineless, but they are not hallucinating.
Has Barack Obama exacerbated the corruption of our political institutions? Undoubtedly. He has manipulated societal envy into a politics of victimhood and pitted Americans against Americans. But Obama did not create the envy; he exploits it. Where the corruption of our institutions is concerned, he is the extreme effect, but we—our society and our diminished culture—are the cause.
This article originally appeared in The New Criterion, Volume 34 Number 5, on page 19
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