| The New Right v. The Constitution
by Stephen Macedo Book review by Richard A. Cooper
The Reaganite New Right sought a judicial revolution by appointing judges who subscribe to the New Right's jurisprudence of "judicial restraint." The New Right's jurisprudence is a device to advance their political goals and to render their victories permanent. Stephen Macedo, an Assistant Professor of Government at Harvard, challenges both the New Right and the "selective judicial activism" of the Left in his important work, The New Right v. The Constitution. He counters with a "principled judicial activism" on behalf of rights to individual liberty, both social and economic. Macedo examines four principles of the New Right's jurisprudence: "Original Intent," majoritarian democracy, moral skepticism and public morality. These doctrines receive systematic analysis and refutation. His principal targets are Attorney General Edwin Meese and Supreme Court nominee Judge Robert Bork. Bork's work incorporates all these dogmas. Bork invokes Original Intent: "The framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed." Bork interprets the Constitution as a charter for majority rule with only a few specific rights being limits on democracy. "The original Constitution was devoted primarily to the mechanisms of democratic choice." Macedo's observation is apt: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights." In Bork's view, the majority has the right and the duty to impose its morality on the minority. Yet, Bork demonstrates the moral skepticism of the New Right when he first denies that there is any way to decide between competing moral claims. He then dismisses these claims in the most vulgar Marxist fashion: "Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of two groups." Bork claims that the "major freedom, of our kind of society is the freedom to choose to have a public morality." No surprises. Bork and colleagues have a public morality at hand, as Macedo points out: "they wish to fill the moral vacuum they establish in liberal constitutionalism with religious values, specifically with Christian values." I suspect that the entire thrust of the New Right's jurisprudence is to impose their conservative social views with a Constitutional imprimatur. Strangely, Macedo does not point out the contradiction and bad faith inherent in the simultaneous advocacy of public morality and moral skepticism. "Public morality" threatens individual rights. Macedo asserts that "Original intent" is contrary to the intent of the Framers, a quite delightful irony. He asks crucial questions: Whose intent? How do we determine Original Intent? Should only the authors count and not the ratifiers? I ask, "Why not the Anti-Federalists?" Many passages are ambiguous. How should they be interpreted? Bork reads these in favor of governments. Macedo argues that ambiguities should be interpreted in a way that is consistent with the other values and goals in the Constitution. Macedo agrees with many complaints about the judicial activism of Justice Brennan and others. These judges bend the Constitution to fit the current causes of egalitarian liberalism. Liberal judges have conducted a judicial coup d'etat against the Constitution's text. The liberals have a double standard, protecting only some rights. They leave economic rights unprotected. The New Right resolves the double standard by not protecting any rights against the government, except to a bare minimum. Both Right and Left smuggle their programs into the Constitution as they jointly expand state power, Macedo warns. Macedo contends that "In sum, the New Right invokes 'Original intentions' in order to evade the only intentions that really count: the purposes embodied in the Constitution itself. The New Right's narrow interpretation of individual rights is supported not by the Constitution but by an ideology of majoritarianism and moral skepticism that is deeply at odds with the Constitution. Against both the New Right and selective activists of the left, a principled judicial activism in service of individual rights both personal and economic will be urged in these pages. By fusing constitutional interpretation and moral theory, principled activism vindicates the Constitution's authority by vindicating its rightness." Fundamentally, Macedo maintains that the Constitution is a document to protect individual liberty. The Framers and their opponents, the Anti-Federalists who feared the Constitution would prove inadequate and who shaped the Bill of Rights, had both practical experience and the judicious reading of Locke, the classics, and the English libertarian heritage of Cato's Letters to guide them in securing a free society. Now, as then, we must remember that "Eternal vigilance is the price of liberty." Macedo issued a warning to all Americans about the New Right. Will it be heeded? The Cato Institute, 224 Second St., S.E. Washington, DC 20003. 60pp, $7.95 paperback. The New Right v. The Constitution by Stephen Macedo.
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