The Nation, 22 February 2010

Some left-of-center readers may become impatient with this blog from time to time.  Quite often, I post notes about The American Conservative or Chronicles in which I quote pieces in these right-wing publications calling for a return to a conservatism that, they tell us, once existed in the USA, a conservatism that was critical of capitalism and of militarism.  Surely, readers may ask, there’s a reason why the left came to have a near-monopoly on incisive critiques of these things.  Neither nostalgia for a precapitalist order in which the peasantry could thrive nor an appeal to an imaginary sort of “free enterprise” in which the owners of capital disdain corporatist state intervention and seek advantage over their competitors only in the open market can offer a useful economic policy for the world in which we actually find ourselves.  Nor can any amount of regional resentment or localist suspicion of the government in Washington immunize the public against the siren song of nationalism, and the lure of big defense contracts coming to town.  Only a politics that is willing to put social equality front and center can really challenge the power elite and remake America as a humane, just society. 

So it may be.  But the idea of a better Right, a conservatism that once graced American life with its principled opposition to the dehumanizing aspects of mass society and the modern state, does make an appearance in this issue of The Nation.  Alexander Cockburn, himself a frequent contributor to Chronicles, quotes the cover story of the current American Conservative, in which its publisher analyzes crime statistics indicating that, contrary to popular opinion, undocumented workers are not in fact more likely to commit crimes than are other residents of the USA.  The “Noted” column begins with a paean to, of all people, the late Chief Justice of the United States, William Rehnquist.  I have to quote it in full, since no abridgement would sound like anything that could possibly have appeared in The Nation:

WHAT WOULD REHNQUIST DO? The Supreme Court’s gift of constitutionally protected political speech to paper entities in the Citizens United case would have elicited a vigorous dissent from the late Chief Justice William Rehnquist for a simple and compelling reason: he was a conservative. As a conservative, he would have agreed with dissenting Justice John Paul Stevens that the decision “represents a radical change in the law.” This is clear from Rehnquist’s mostly forgotten dissent in a 1978 case, First National Bank of Boston v. Bellotti.

The issue in Bellotti was whether a Massachusetts criminal statute prohibiting spending by banks and businesses to influence voting on referendum proposals violated the First Amendment. In a 5-to-4 ruling, the Court held that the bank indeed had freedom of speech and that it had been violated.

 The opinion was written by Justice Lewis Powell, who found support in Santa Clara County v. Southern Pacific Railroad. In that infamous 1886 case, Chief Justice Morrison Waite announced, “The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.” Ratified only eighteen years earlier, the amendment defines a citizen as a person “born” or “naturalized” in the United States. That’s why Santa Clara was ultimately judicial activism. Yet putative conservatives who regularly denounce Roe v. Wade reliably ignore it.

In his Bellotti dissent, Rehnquist noted approvingly that Congress and thirty-one state legislatures “have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible.” He went on to warn, “It might reasonably be concluded that those properties [of corporations], so beneficial in the economic sphere, pose special dangers in the political sphere.”

Rehnquist’s warning was conservative; the Powell majority’s brushoff was radical.

The issue in Bellotti is closely related to that which Justice Anthony Kennedy‘s majority contrived to address in Citizens United: whether paper entities have, in Rehnquist’s words, “a constitutionally protected liberty to engage in political activities.” He would have judged the dissenters, routinely described as liberals, to be conservatives.   MORTON MINTZ

Chronicles carried a similar piece last month, declaring that judicial imperialism now comes in two varieties, right-wing and left-wing.  In view of Cockburn’s reference to The American Conservative, I’m almost surprised they didn’t quote that piece. 

Students of American history will recall that the judiciary has been a bastion of the right far more frequently than it has been of the left.  Judicial activism, or judicial imperialism as some call it, began not with Earl Warren’s insistence that the rights of African Americans, women, and prisoners be remembered, but with John Marshall’s defense of the Federalist state against the more populist aspects of Mr Jefferson’s party.  Perhaps the most ambitious piece of writing ever handed down from the bench of the US Supreme Court was Chief Justice Taney’s ruling in Dred Scott; and when the elected branches of the federal government enacted statutes to protect the rights of freed slaves after the Civil War, it was the federal courts that systematically dismantled those statutes and rendered the equal protection clause of the Fourteenth Amendment to the Constitution meaningless.  Those who accuse the Warren Court of overreaching ought really to acknowledge that the Hughes Court went rather far in striking down the National Recovery Act and so much of the New Deal with it. 

I bring this up to make the point that this noble conservatism for which so many of the writers I read spend so much of their time pining is a bit of a figment.  The American Right has never at any time hesitated to use its power, whether electoral power, judicial power, economic power, or military power, to impose its will on the public.  Chief Justice Rehnquist himself tacitly acknowledged as much.  As an assistant attorney general in the Nixon administration, Rehnquist was once tasked with defining the term “strict constructionist,” the label Nixon and other Republicans applied to themselves when criticizing the range of the Warren Court’s decisions.  His definition:

A judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s “broad constructionist” reading of the Constitution.

In other words, a “strict constructionist” will be biased in favor of the government in criminal cases, and biased against the government in civil cases.  That hardly sounds like a noble ideal whose demise we should bewail.

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