Knowledge And Decisions

The great vulnerability of the Constitution today is that it is an obstacle in the path of groups that are growing in size, influence, and impatience. The most striking, and perhaps most important, of these are the intellectuals, especially in the politicized “social sciences.” Politicians, once constrained by national (voter) reverence for constitutional guarantees, now operate more freely in an atmosphere where intellectuals make all reverence suspect and make “social justice” imperative. The decline in political party control (“machine politics”) has given the individual politician more scope to be charismatic and entrepreneurial about causes and issues. Politicians ambitious for themselves as individuals and intellectuals ambitious for recognition as a class must discredit existing social processes, alternative decision-making elites, and the accumulated human capital of national experience and tradition which competes with their product, newly minted social salvation. However much they may emphasize the special virtues of their particular schemes, it is unnecessary here to go into them, for the point is that whatever the current specifics, they are certain to be superseded by new specifics in a few years to perform the same political function for the careers of new politicians and intellectuals. The danger to the Constitution is not so much in particular laws as in the general climate of opinion in which law and government are no longer seen as a framework within which individuals make changes incrementally, but as themselves means of making categorical changes directly, according to the preferences of whoever happens to have control of these institutions. One symptom of how far this has gone is that the first peacetime imposition of federal wage and price controls in American history occurred in 1971 under an administration widely regarded as “conservative” — as indeed it was. But that even “liberal” administrations in the past had not dared to do the same thing was one indication of how much the political climate had changed.

The “crisis” orientation of politicians and intellectuals is accepted and amplified by the mass media. Today's “problems” are news; neither the long-run implications nor the inherent constraints can be photographed by the television camera, or even discussed in the brief minutes between commercials. Moreover, with print and broadcast journalists as part of the intellectual class, grounded largely in the so-called “social sciences,” few questions may be raised about the cognitive processes they employ.

The rise of goal-oriented imperatives has meant the undermining or superseding of process-oriented constitutionalism. The imperatives of economic recovery from the Great Depression of the 1930s spawned numerous hybrid agencies combining the very powers which the Constitution had so carefully separated. Military imperatives, beginning in World War II and continuing into the nuclear age, have sanctioned an increase of the presidential powers as commander-in-chief of the armed forces, to the point where they include the de facto power to declare war without congress, as demonstrated in Vietnam. Finally, moral imperatives concerning the less fortunate segments of society (farmers and industrial workers in the 1930s, blacks in the 1960s, miscellaneous other groups in the 1970s) have expanded the scope of the judiciary beyond anything ever contemplated when the Constitution was written. Along with this has developed a philosophy that it is not merely expedient but legitimate to circumvent the democratic process in the interest of “higher” moral goals — ending the death penalty, integrating the schools, redistributing income, and other forms of “social justice.”

While the new trends in the political climate are easiest to notice, there is no need to extrapolate them as an inevitable “wave of the future.” There are ample signs that the public has had more than enough, and even signs that some of this disenchantment has begun to penetrate the insulation of courts, bureaucracies, and other institutions. The Burger Court is not the Warren Court, though it is hardly the pre-Warren Court either. Deregulation moves by the Civil Aeronautics Board, stronger criminal sentencing laws in various states, and the defeat of school bond issues that were once passed easily are all signs that nothing is inevitable. Whether this particular period is merely a pause in a long march or a time of reassessment for new directions is something that only the future can tell. The point here is not to prophesy but to consider what is at stake, in terms of human freedom.