American Experiment (402 page)

Expected to offer a consistently law-and-order interpretation of the Fourth Amendment, the High Court cautiously picked its way between upholding and vetoing state law-enforcement procedures. The Court, perhaps recognizing that for millions of American commuters their car as well as their home was now their castle, threaded an especially narrow course on searches of vehicles. “While the justices gave state police broad latitude to conduct auto searches,” students of the Court wrote, “they prohibited warrantless interrogation of motorists to check driver’s licenses and registrations without probable cause suggesting possible criminal activity. If the Burger Court permitted police to search the passenger compartment of a car stopped for a traffic violation and to seize evidence subsequently used to prosecute for violation of narcotics laws, it also prohibited the search
of a vehicle’s luggage compartment.” Between the back seat and the luggage compartment lay a narrow line indeed.

In other areas the Burger Court also took a mixed position. On protection against self-incrimination, it continued the Warren Court’s
Miranda
doctrine but refused to broaden it. Its ruling in
Roe
v.
Wade
was a victory for women’s rights, but the Court afterward sustained denials of public funding for abortions. It protected or even enlarged free speech in some cases but narrowed it in others, as in cases of pornography or of leafleting or picketing in privately owned shopping malls.

Rejecting such eclecticism, the Republican right greeted with new hope Burger’s decision to quit the Court in 1985 to head the nation’s official bicentennial commission, and with even greater hope Reagan’s elevation of Rehnquist to Burger’s seat and his choice of two associate justices with impeccable conservative credentials. A minor consequence of conservative satisfaction was that the broad issue of the Court’s power to invalidate laws on a variety of grounds—one of the most important and potentially explosive issues of American democracy—was hardly touched upon during the cerebrations of the 1987 bicentennial. Instead, oceans of ink and flights of oratory were devoted to a lesser though equally fascinating question, original intent.

This question was propelled into the forensic arena when Reagan’s Attorney General, Edwin Meese III, calling for a “Jurisprudence of Original Intention,” intimated that his chief would pick only judges whose applications of the Constitution would reflect the intentions of the Framers. Law school professors, historians, political scientists, and Supreme Court justices pounced on this dubious notion, proved conclusively that it was wrong historically—and then wondered whether they had won a glorious intellectual victory on a side issue. The scenario was repeated when Reagan proposed Robert H. Bork for the High Court—the Senate foes won the debate over original intent, handily vetoed Bork, but were left with a Pyrrhic victory after the President found an almost equally conservative substitute.

The central issue of judicial power was also one of intellectual leadership. In their meandering course, the Burger Court, and for a time at least the Rehnquist Court, appeared deceptively eclectic, moderate, practical. But that course concealed a lack of jurisprudential and philosophical coherence in the very heart and brain of the federal judiciary. At best the Reagan Court was marking time; at worst it was losing time, failing to develop clear and consistent operational standards related to the nation’s values, storing up trouble for the future, its incoherence rivaling what the
Iran-Contra hearings revealed in the presidency, and with perhaps equally grave consequences.

In the late 1980s the structure of government remained intact, the balances in the old clock still operating, the springs and levers still in place. A Republican President and a Democratic Congress nicely checked each other; House and Senate held an absolute veto power over each other; the Supreme Court had an all but final veto over the two political branches. Inside these separated institutions lay political and intellectual conflicts that contained the seeds of enormous change and potential crisis.

For a century and a half the two main parties had proceeded down the political mainstream, rolling along with the inevitability of the Mississippi. But just as storm and flood had periodically roiled the placid waters of that river of American history, so political movements and ideological tempests had disrupted the steady flow of two-party politics. And American politicians, like the people living along the riverbank, knew that the flood would come again—but they did not know when.

Social protests and political movements had risen and fallen with some regularity over time. Before the Civil War abolitionism had challenged both Democrats and Whigs and the easy accommodations they had made with slavery. In the 1890s aroused agrarians had moved into the Democratic party, even wresting the presidential nomination from the centrist Clevelandites. In the 1930s several streams of protest had coalesced as desperate farmers, urban reformers, western progressives had taken a dominant role in the Democracy. In the 1970s and 1980s conservatives of varied stripes had merged with Republican party regulars to put Ronald Reagan into office and keep him there.

These movements might appear to have erupted with the suddenness of a spring freshet and then subsided as quickly. Each protest, in fact, had sources deep within the politics and morality of its period. Outrage over slavery had aroused the consciences of men and women in both the Democratic and Whig parties, triggered third-party forays such as that of the Liberty party, cut deep divisions not only between parties and between major interests but within them, and convulsed the entire political system by the 1860s. The lightninglike capture of the Democratic party by the Bryanites in 1896 was the product of years of intense agrarian unrest, western greenback and silver movements, organizational efforts by the Farmers’ Alliance leaders and rank and file, years of populist agitation, the
devastatingly low farm prices and other hard times of the nineties. Fighting Bob La Follette’s Progressive party of 1924 and Al Smith’s presidential candidacy of 1928, followed by the farm movements of the great depression, helped pave the way for Roosevelt’s presidency and for the New Deal expansion of both the political appeal and the social philosophy of the Democracy. And on the American right both economic and evangelical leaders had fought a long battle, first winning and then losing with Gold-water in 1964, flirting with George Wallace and other elements North and South hostile to civil rights, and losing once again with Reagan in the GOP nomination fight of 1976, before achieving their breakthrough in the 1980s.

Thus movement politics had collided and combined with party politics throughout American history. Like their counterparts in other countries, American social protest movements were unruly, untidy, and unpredictable in effect, but they displayed continuities and similarities in their very dynamics. The pattern was clear, even dramatic: these movements emerged out of economic stress and social tension and erupted in conflict, often violent. After a time they dominated political debate, overshadowed more traditional issues, cut across existing lines of party cleavage, polarized groups and parties. The immediate test of success was whether the movement could force one major party or both of them to embrace its cause. The test of long-run success was whether the movement left the whole party system altered and, even more, left the political landscape transformed.

The great transformations that had occurred, in the antecedents of such critical elections as those of 1860 and 1896, and the series from 1928 to 1936, have been studied in great detail by exceptionally able historians and political scientists. The main interest was usually in the rise and fall of parties, since their fate in elections could be so easily measured. But party change contained a paradox—despite all the turmoil the nation had undergone, the Democratic party had existed ever since the 1830s and the Republican party since the 1850s. These staid old parties had entered and left office like Box and Cox but had continued to move down the political mainstream, capsizing and sinking third parties in the process.

Hence on closer inspection, the critical question was not so much party realignment as party reconstitution. The most significant case of this kind of change in the twentieth century was the shift of the Democratic party under Roosevelt, Truman, Kennedy, and Johnson. Behind FDR’s leadership the Democracy became much more of an urban, trade union, ethnic, and poor people’s party, but—partly because of Roosevelt’s need of support from internationalists of all stripes during the war years—it retained
its old and solid base in the white South. Truman’s bold civil rights stance, Kennedy’s Catholicism and growing commitment to civil rights, and LBJ’s comprehensive civil rights program accelerated the reconstitution of the party. Blacks forsook their ancient allegiance to the Republican party of Lincoln and flocked to the Democracy; white southern Democrats forsook the party of Grover Cleveland and Woodrow Wilson to move first toward third-party ventures and then toward their old partisan adversaries, the Republicans.

For Southerners, switching parties was not easy. Their leaders in particular were “in a bind with the national Democratic party,” as Republican Representative Trent Lott of Mississippi noted. “If they subscribe to the national Democrat party’s principles, platform, they are clearly going to alienate the overwhelming majority of the white people in Mississippi.” If they stayed with the national party’s base, “they wind up with blacks and labor and your more liberal, social-oriented” Democrats. “Put those groups together and they are a minority in Mississippi.” So Republican party leaders were ready at the front gate to welcome the Southerners. The Goldwater-Reagan party, having ousted the liberal Rockefeller wing, was prepared to usher southern ex-Democratic leaders into the inner councils of the purified GOP. Congressional converts like South Carolina senator Strom Thurmond were soon making Republican party policy, and convert John Connally of Texas even ran for the Republican presidential nomination.

The test of this reconstitution lay in the political grass roots of the South, and here the shift was dramatic. The percentage of white Southerners identifying themselves as Republicans rose eight points between 1979 and 1984 and then jumped an astonishing ten points further the following year, a movement which public-opinion analyst Everett Carll Ladd saw as “an almost unprecedentedly rapid shift in underlying party loyalties across a large and diverse social group.”

By the late 1980s the Republican party had reconstituted itself as the clearly conservative party of the nation. Ronald Reagan presided as a conservative; all the Republican presidential aspirants of 1988 endorsed his Administration and bore, in one way or another, the Reagan stamp. Reagan Republicans had conducted “half a realignment,” in popular terms. They posed a challenge that the Democratic party leadership was failing to meet as the 1988 election approached.

That challenge was as much philosophical and ideological as political and electoral. The GOP’s rightward tack appeared to leave a huge unoccupied
space in the middle of the political spectrum. To all the Democratic presidential aspirants save Jesse Jackson this space was an enticement. How logical it appeared for Democrats to shift some of their appeal to the center while holding their traditional support on the left, and forge a moderate-centrist-liberal coalition much like the winning North-South alliance the national Democracy had maintained for decades before that strategy crumbled in the face of the black revolt. But in a battle against conservative Republicans, they could not talk centrism without being accused of the sin of “me-tooism.” And me-tooism was hardly the answer to the Democratic dilemma. “If American voters are in a conservative mood,” Arthur Schlesinger, Jr., wrote, “they will surely choose the real thing and not a Democratic imitation.”

So what the Democrats talked was not conservatism or even centrism but pragmatism. The American Enterprise Institute political analyst William Schneider, after sitting in on a 1986 board meeting of a candidate’s think tank—it happened to be Gary Hart’s—noted that certain words kept coming up:
parameter, interactive, consensus, instrumental, modernize, transition, dialogue, strategic, agenda, investment, decentralize, empowering, initiative, and entrepreneur.
But the word of the day, he noted, was
pragmatic.
“Be pragmatic in all things,” the group seemed to be saying. “Be not ideological.” The Democrats’ selection of Massachusetts Governor Michael Dukakis as their presidential nominee in 1988, and his choice in turn of Texas Senator Lloyd Bentsen as his running mate, met this test.

What did they mean by pragmatism? Whether the candidates used the term or not, it was clear they meant what was practical, realistic, sensible—
what worked.
But what was the test of workability? By what values was workability measured? Into this forbidding “ideological” land the candidates were reluctant to venture.

What politicians mean by workability is usually what promotes their immediate candidacies, rather than an ultimate cause or creed. Thus was pragmatism degraded into the most self-serving kind of doctrine, a pragmatism that would not have recognized its intellectual ancestry. Indeed, presidential candidates in the 1980s, especially the Democrats, were embracing their brand of pragmatism so enthusiastically as to make it into a doctrine, even an ideology—anathema to Charles Peirce and John Dewey.

To a degree, pragmatism was a convenient way to avoid labeling. Did it conceal an agenda? “Pragmatic,” Schneider noted, had become “this season’s Democratic code word of choice for market-oriented, rather than government-oriented, solutions.” For most of the Democratic candidates, it seemed, pragmatism meant some form of market capitalism. Then how much of an ideological gap separated them from Reaganism? The leaders
of the Democratic liberal-left answered “too little” and proposed a clearly contrasting alternative.

That alternative was a movement strategy as against a strategy of mainstream and marketplace. It was in key respects an old-fashioned idea: if social protest movements had been vital to the renewal and redirection of political parties in the past, and if the needs and aspirations of large sectors of American society remained unmet, then the Democrats must make their mightiest effort to reach out to movement leaders and rank and file. These, in some combination, were its natural and traditional constituency— women, peace groups, blacks, union labor, small farmers, ethnics, youth, the poor, and the jobless.