Slouching Towards Gomorrah (17 page)

First of all, there is the Supreme Court’s constitutionalizing of radical individualism. In this area, we have arrived where Mill pointed, at an increasing disjunction between the individual and the society. The result is the “adversary culture.” Though it is neither logical nor legitimate as a matter of constitutional interpretation, there is a psychological basis in our Constitution for judicial radical individualism. One of the prices we pay for our Bill of Rights is an emphasis on personal freedom that is not balanced in the document by a Bill of Personal Responsibilities or a recognition, as in the constitutions of other countries, of limits set by community welfare. It is perhaps understandable, though certainly not excusable, that judges began to inflate enumerated rights and to create new rights, which they enforce against democratic decisions. Given the way the Court’s decisions are reported…as victories for attitudes or moral positions rather than as legal determinations…those decisions resonate throughout our culture with powerful effects on public attitudes.

The unqualified language of the Bill of Rights and the Declaration of Independence, reflected in the continual expansion of individual rights by the judiciary, feed our national obsession about “rights.” That obsession, as Harvard law professor Mary Ann Glendon has pointed out,
³
impoverishes cultural, political, and judicial discourse. There is no more sterile form of “argument” than the bald assertion of rights. But bald assertion, unaccompanied by analysis or reasons, is the common form of discourse in these matters.

The jurisprudence of the First Amendment is a case in point. That amendment is a central concern of modern liberal intellectuals, dealing as it does with speech and religion. The difference in the Court’s treatment of those two subjects flows naturally from
radical individualism. Modern liberals value speech, which they have now expanded to include non-verbal expression, while their attitude toward religion ranges from indifference to hostility. It is not surprising, then, that the Courts decisions expand the area of protected non-religious expression beyond reason in the interest of the utmost individual freedom. Simultaneously, and largely in the interest of individual autonomy, the Court has drastically limited the public expression of religion beyond anything the ratifiers intended.
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The freedom of speech guaranteed by the amendment was long thought by the Court to be speech about ideas, but that is not the Courts view today. Today, the Court reads the speech clause as a protection of self-expression, personal autonomy, or individual gratification. Perhaps the best known instance is
Cohen
v.
California
,
⁵
which conferred First Amendment protection on a young man who refused to remove a jacket with the words “F … the Draft” (without the ellipsis) that he wore in a courthouse corridor. Saying that the state could not convict Cohen of disorderly conduct, the Court majority observed: “[T]he principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?”
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The Court went on to offer as the decisive consideration: “[O]ne man’s vulgarity is another’s lyric.”
⁷
Moral relativism, which the Court endorsed, is necessary to radical individualism. But it must, of course, be confined to areas such as speech and sexuality. It would never do to reverse a conviction for assault on the ground that one man’s battery is another’s sparring practice.

The same impulse was on show in the flag-burning case,
Texas
v.
Johnson
.
⁸
Forty-eight states and the federal government had enacted laws prohibiting the physical desecration or defilement of the American flag. Johnson and his companions burned a flag while chanting “America, the red, white, and blue, we spit on you.” Texas indicted and convicted him for burning the flag, not for his speech. But five Justices gave two reasons why Johnson’s conviction could not stand. Neither reason bears examination.

The majority’s first reason was that enforcement of the statute violated the “bedrock principle underlying the First Amendment,” that being: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
⁹
That certainly is a bedrock principle, and it had absolutely no relevance to the case. Texas did not prosecute because Johnson’s idea was offensive but because his mode of expression was. There were dozens or hundreds of ways for Johnson to express his offensive sentiments with the complete protection of the First Amendment. Nor is it unusual for the First Amendment to permit the banning of particular modes of expression. One supposes (though one is no longer quite sure) that government could still prohibit the telecasting of political views in obscenities or the expression of them by loudspeaker at three in the morning in a residential neighborhood. The Court got itself into this particular intellectual quagmire because its responsiveness to the claims of individualism led it to decide previously that an amendment protecting only the freedom of “speech” somehow protects conduct if it is “expressive.”

That brings us to the second reason the Court majority offered:

There are so many answers to that it is hard to know where to begin. The most obvious has been mentioned: burning a flag is not speech and should not fall under First Amendment protection. Beyond that, the Court’s claim that it cannot make distinctions without forcing its political views on us is specious. The customs and practices of Americans make the very distinction the Court says it cannot. Our national flag is entirely different from other symbols. Nobody pledges allegiance to the presidential seal or salutes when it appears. Marines did not fight their way up Mount
Suribachi to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.

Symbols are necessary to community. As columnist Paul Green-berg put it: “[I]f a nation lives by its symbols, it also dies with them…. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become presences…. Today’s strange arguments from our best-and-brightest against protecting the national emblem are not symptomatic of any kind of treason-of-the-intellectuals, but of a different malady: an isolating intellectualism cut off from a sense of reverence, and so from the historical memory and heroic imagination that determines the fate of any nation.”
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But the denigration of unifying symbols advances the cultural and social dissolution that radical individualism seeks. To realize how far the Court’s “isolating intellectualism” has progressed in recent years, it is necessary only to recall, as the dissenting opinion in
Johnson
did, that Chief Justice Earl Warren and Justices Hugo Black and Abe Fortas, a trio unlikely to be enshrined in any conservative pantheon, had said that, of course, the Constitution did not bar the states and the federal government from prohibiting the desecration of the American flag.
¹²
The Justices in the
Johnson
majority were not unintelligent people. They could see the flaws in their argument as well as anyone. But it is no longer necessary to construct or be guided by a logical argument. What matters is that the result be consonant with the modern liberal mood. One can only hope that some day the Court will have occasion to review a conviction of a man who protested the sodomy laws of his state by engaging in indecent exposure. Would the Court hold that the state could not punish him because he was expressing an offensive or disagreeable idea? Would the Justices decide that they could not distinguish between different parts of the anatomy used as symbols without imposing their psycho-social views on the citizenry? I am not sure of the answer, but the oral argument should be high comedy.

The same judicial mood is on show in the rules devised by the Court for speech advocating violence and law violation. The Court has wobbled about on these questions for some time. In a case involving advocacy of violent revolution to impose a proletarian dictatorship, Justice Holmes, joined by Justice Brandeis, contended
that “the only meaning of free speech” is that such ideas should be given their chance to have their way. Constitutional scholar Walter Berns summed up that position: “The only meaning of free speech turns out to mean that it is worse to suppress the advocacy of Stalinism or Hitlerism than to be ruled by Stalin or Hitler. The reasons for this are not, one might say, readily apparent.”
¹³
At least in 1925 Holmes and Brandeis were in dissent. But by 1969 a unanimous Court could dash off a short, unsigned opinion in
Brandenburg
v.
Ohio
:”[T]he constitutional guarantees of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.”
¹⁴

There is no reason whatever to throw constitutional protection around such speech except to protect the enjoyment of the individuals speaking or hearing the words. In a republic, where the polls are open and elected representatives make the law, there can be no value in speech advocating the closing of the polls or nullifying the effect of laws democratically made. There is, moreover, no idea that cannot be expressed without advocating violence or law violation…except the idea that the audience should engage in violence or law violation. That idea can hardly be said to have any social benefit in a democracy dedicated to operating under the rule of law.

The Courts treatment of religion is of a piece. Under the First Amendments prohibition of the establishment of religion, the Court has steadily made religion a matter for the private individual by driving it out of the public arena.
Lee
v.
Weisman
¹⁵
held, for example, that a short, bland, non-sectarian prayer at a public-school commencement amounted to a forbidden establishment of religion. Government coercion of Deborah Weisman was seen by the Court in the possibility that she might feel “peer pressure” to stand or, if not that, to maintain respectful silence during the prayer. While the Court’s insistence on driving religion and religious symbolism from the public arena has often been justified because of the alleged dangers of allowing religion and government to come close together, a closeness that is not within light years of establishing a theocracy, the Court frequently emphasizes
the harm to an individuals sensibilities of seeing religious expression with which he disagrees.

Radical individualism is the only explanation for the Supreme Courts creation, out of thin air, of a general and undefined right of privacy. The Court used the invented right, allegedly to protect the sanctity of the marital bedroom, to strike down a dormant Connecticut statute prohibiting the use of contraceptives.
¹⁶
But marital privacy was shortly transformed into individual autonomy when the Court invalidated a Massachusetts law restricting access to contraceptives by single persons.
¹⁷
That in turn led to
Roe
v.
Wade
¹⁸
and the right to abortion. Whatever one’s feelings about abortion, the decision has no constitutional foundation, and the Court offered no constitutional reasoning.
¹⁹
Roe
is nothing more than the decision of a Court majority to enlist on one side of the culture war.

The extra-constitutional individualism that undergirds the “constitutional” right to abortion was made clearest in the joint opinion of three Justices in
Planned Parenthood
v.
Casey.
²⁰
These Justices, whose votes created a majority to sustain most of
Roe,
invented a heretofore unheard-of constitutional right to “personal dignity and autonomy.” They attempted to explain the appearance of this previously unsuspected right by saying: “At 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.”
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Beliefs about such matters were said to define “personhood,” which is to be protected from state compulsion. It is not recorded that any American government, from the founding on, has ever thought it worthwhile to compel anyone’s concept of meaning or of the mystery of human life. What this judicial grandiloquence means, aside from a right to have an abortion, nobody knows. But then hymns to radical individualism are necessarily murky and obscure. This particular one is known in the trade as “the mystery passage.”

The language of the four dissenters in
Bowers
v.
Hardwick
…the case deciding, five to four, that homosexual sodomy is not a constitutional right…is clearer but even more dismaying. (After he retired, Justice Lewis Powell stated that he regretted not voting with the four, thus making a majority for their position.) The dissent would have found a constitutional right to engage in homosexual
sodomy by invoking the right of privacy once more: “[The Court] has recognized a privacy interest with reference to certain decisions that are properly for the individual to make.”
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The word “properly” signifies that not all decisions are for the individual to make, just those the Court, as opposed to the legislature, approves of. The majority, which ruled against Hardwick, tried to limit the reach of the right of privacy by saying that the cases decided under that heading had related to the protection of the family. The dissenters made an astonishing response: “We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.”
²³
So much for the family as the basic unit of society. The family’s value is measured by its contribution to individual gratification. That is a major theme of modern liberalism, particularly of its feminist component, which views the family as oppressive to individuals.