Originally posted at the School of Public Policy’s blog on October 8, 2015.

In an earlier SPP post (also posted on this site) I paid tribute to Walter Berns and Harry Jaffa on the occasion of their almost simultaneous passing in January 2015. Subsequently, I was privileged to participate in a roundtable on the work and legacy of Walter Berns organized by the Claremont Institute for the annual meeting of the American Political Science Association in San Francisco, Sept. 2-6, 2015. The following is the text of my remarks:

I am honored to be here to discuss the life and work of Walter Berns – a wonderful teacher, a superb scholar, a beautiful writer, and, quite simply, one of the finest men I have known.

Harvey Mansfield has aptly described Berns as “a man with a chest.” So very true! A blander formulation would be to say that he was a man of great character. As such, he was perfectly suited to think and write about character, or virtue, as he did throughout his long career.  He wrote especially about how modern Supreme Court jurisprudence undermined the citizen character required to sustain liberal democracy. Hence the title and theme of my remarks: Courts and Character.

Berns’s thought about citizen character took its bearings from the central paradox of liberal democratic constitutionalism. On the one hand, liberal democracy is designed to dethrone virtue as the end or purpose of government, and to reduce the need for it in the operation and processes of politics and government. On the other hand, the same James Madison who sought to pit ambition against ambition to remedy “the defect of better motives” resisted “the inference … that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.” In other words, even a regime of self interested checks and balances depends on some degree of citizen character. As Berns put it, “a country founded on the principle of self-interest…could not be expected to flourish if it consisted only, or mainly, of self-interested men” (1984, 61). In what does the offsetting character consist, and how can it be produced or sustained in a regime devoted to the liberation of interest and the individually defined pursuit of happiness? These questions lie at the heart of Berns’s work.

In what does the requisite liberal democratic character consist? It consists in part in the willingness to be a good political loser. When a liberal democratic government is defeated in an election, it steps aside gracefully, if reluctantly, handing over the reins of power to its opponents and becoming the “loyal opposition.” This feature of liberal democracy may have become a banal commonplace to its citizens, but it is actually a startling departure from what might well be called “normal” political practice. For most of history—and still in parts of the world—those in power have refused to concede the legitimacy of their opponents and to accept the principle of regular alternation in office. So uncommon is the political good loser that, according to Madison, even “the most frivolous and fanciful distinctions have been sufficient to kindle [the] most violent conflicts.” Lowering the ends of politics – i.e., substituting Tocqueville’s “small party” politics for its “great party” alternative – is the necessary, but perhaps not sufficient, condition for lowering the temperature of politics.

Yet the temperature must be lowered. Somehow, the naturally violent inclinations of the political partisan – even the “small party” partisan – must be moderated by good sportsmanship. Having actually encouraged citizens to indulge their partisan inclinations, to form parties and engage in political battle, liberal democracy then requires them to do something difficult and uncommon: to accept defeat. To use a formulation by Ralph Lerner with which Berns agreed, liberal democracy depends on the willingness to concede that even on “difficult questions” people “may differ in opinion and yet be patriots” (1967, 137).

Where will this citizen character come from in a regime that eschews character formation as a central end or purpose? Berns, guided by Tocqueville, discussed many sources. Here I will focus on just one: The educative effect of political institutions. And in this respect, I’m particularly interested in the distinction Berns drew between representative government and government by judiciary. Which institutional policy prescription best fosters liberal democratic character?

The deliberative processes of representative government, writes my co-panelist Joseph Bessette, require participants to “be open to the facts, arguments, and proposals that come to their attention,” and to “share a general willingness to learn from their colleagues and others” (1994, 46). Indeed, representative processes arguably help to produce the very virtues they require. For Berns, the rules for constructing legislative majorities “encourage accommodation.” They do so by requiring “debate,”

which implies on the part of those participating in it a capacity and willingness to be persuaded, persuaded by another with an equal right to form the majority or to be part of it, with an equally legitimate interest, and, perhaps, with a superior argument. And it implies, and even encourages, the willingness to abide by the vote of the majority assembled (1987, 143).

Berns saw such moderating and accommodating influences as necessary to secure government by consent.

Later in the same book – Taking the Constitution Seriously (1987) – Berns restated the point:

Success in the legislature is measured by the extent to which one’s interest is accommodated in the law adopted by the majority, and to achieve that success it is necessary to display a willingness to be accommodating oneself (224).

Success in the modern courts, he immediately went on to say, is measured quite differently. It is

now measured by having one’s interest declared a right, and with the right comes the freedom to be immoderate… (224).

No longer content with the widely supported natural rights emphasized by the founding generation, modern courts declare new rights with no solid foundation and little agreement. “It is not possible to believe,” said Berns, “that we could have founded a government on the right to terminate a pregnancy” (1987, 226).

When new rights are “created in the teeth of profound opposition,” moreover, they tend to “divide the community into warring camps” (1987, 228). In short, while representative institutions foster the “willingness to be accommodating,” modern judicial edicts fuel Madison’s natural tendency toward “violent conflict.”

The problem is compounded by jurisprudence that extends First Amendment protection to uncivil and inflammatory forms of speech, as well as by jurisprudence that undermines the private and local seedbeds of virtue. None of this fosters government by consent, and it helps to explain, wrote Berns, “why the Framers founded representative government rather than government by judiciary” (1987, 228).

This is not to say that Berns considered judicial review as such to be illegitimate, or that he denied an important public role to the judiciary. In the final sentence of Taking the Constitution Seriously – leaving aside the Appendix –  Berns reminded us that the first Supreme Court Justices acted, in Ralph Lerner’s words, as “republican schoolmasters to the nation” (Berns 1987, 241). That is to say, they consciously fostered the view that people “may differ in opinion and yet be patriots.” Modern judges, however, far from supporting this necessary citizen character, are, in Berns’s phrase, “deconstructing America” (1987, 192).

Although I mostly agree with my teacher and mentor about these matters, perhaps I can end with a quibble. Berns thought Justice Frankfurter was wrong to complain about the common confusion between constitutionality and wisdom – the tendency to think that if something is constitutional it must be wise (1987, 189-90; 2006, 15). Berns conceded the confusion, but considered it to be salutary. It helps to sustain veneration of the constitution and its forms and restraints, which is itself an important part of the necessary citizen character. He quoted Madison on the “veneration … without which perhaps the wisest and freest governments would not possess the requisite stability.” Very true. And yet I have a reservation.

Let me use two cases – Buck v. Bell (1927) and Griswold v. Connecticut (1965) – to indicate my reservation. Although Berns deplored Griswold for finding a new right to marital privacy emanating out of the penumbras of certain established rights, he conceded that he himself, one of the most “insistent critics” of going “beyond the Constitutional text” in this manner, had fallen prey to the “irresistible” and perhaps “inevitable” temptation to do exactly that (2006, 34-36). He had succumbed to this temptation in his first published article, which excoriated the Supreme Court for upholding eugenic sterilization laws in Buck v. Bell.  Now, back to Griswold. On the basis of its newly discovered privacy right, the Court’s majority struck down a law prohibiting contraception, even though that law had fallen into desuetude. Denying the existence of the new right, Justice Stewart’s vigorous dissent would have upheld the law as constitutional, even though he went out of his way to call it an “uncommonly silly” and perhaps even “asinine” law. Like Justice Frankfurter, Stewart clearly did not think that if something is constitutional it must be wise. Would Stewart have been better to imply the wisdom of the challenged law, as Justice Holmes did in Buck v. Bell with his famous statement that “three generations of imbeciles are enough”? This question points to a conversation I would like to have had with Walter Berns directly, and that I must now have with his published work.

REFERENCES

Bessette, Joseph M. 1994. The Mild Voice of Reason: Deliberative Democracy and American National Government. Chicago: University of Chicago Press.

Berns, Walter. 1984. In Defense of Liberal Democracy. Chicago: Regnery Gateway.

___________. 1987, 1992. Taking the Constitution Seriously. New York: Simon and Schuster (reprinted 1992, Lanham, Md.: Madison Books.)

___________. 2006. Democracy and the Constitution. Washington D.C.: AEI Press.

Lerner, Ralph. 1967. “The Supreme Court as Republican Schoolmaster.” The Supreme Court Law Review 127-80.