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One Thing Reagan Did Right

Nominating Robert Bork to the Supreme Court.

by James Leroy Wilson
June 17, 2004

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I am not here to write about Ronald Reagan's achievements or failures. Or how good a person, husband, or father he was. Or whether he betrayed some of his principles and supporters for political expediency. Or how some of his compromises were unacceptable. Because if I wrote about those things, I'd only be inviting the "everybody knows" fallacy. What is this fallacy? In brief, it is that "everybody knows that Saddam Hussein had weapons of mass destruction." From here we can go back into history: the same people who tell us that, also tell us that "everybody knows" that Osama bin Laden's Al Qaeda network, supported by the Taliban, was behind the 9-11 attacks. "Everybody knows" this, right? Just as "everybody knows" that Jimmy Carter was a failed President, that FDR guided America out of the Depression, that the far-sighted Theodore Roosevelt saved the environment 100 years ago, that Lincoln had to preserve the Union in order to preserve self-government, etc., etc. It is extremely difficult to separate myth from reality.

Judging Ronald Reagan on his character, his true principles, and his performance, would be for me, excessively relying on information provided by others. These tend to be biased sources, one way or another: "everybody knows" that the poor got poorer under Reagan; "everybody knows" that Reagan's military build-up felled the Soviet Union.

I'm not interested in assessing Reagan, or any President, by what "everybody knows," or by any standard. I think of Presidents, and the federal government in general, as more of a cost of living: I have to live with Leviathan, but I don't have to like it. So I'm not going to pretend that one President, who may have done less damage than some Presidents, and more than others, is a "hero." And since American nationalism is not my religion, I couldn't chalk up as a saint someone who actually advanced that religion, as Reagan apparently did. Identifying American principles with universal morality, and universal morality with democracy, seems to me to be the product of a very confused, or depraved, mind. As an American, I just want to be left alone to mind my own business, thank you very much.

But I will say this for Ronald Reagan. He sowed the seeds of my own libertarianism, in the most roundabout, ironic way. This happened when he nominated Robert Bork to the Supreme Court.

In his subsequent career, capitalizing on his fame as a conservative martyr, Bork has advocated things I wouldn't advocate, and defended things I wouldn't defend. And I doubt that his "original intent" interpretation of the Constitution is historically reliable. But that's not the point. The real point is that, for all of his faults, Robert Bork took - and takes - the Constitution seriously. The Democratic grandstanders and demagogues who opposed him did not, and still do not. They prefer instead to view the Constitution as a blank check to do whatever they want. Republicans throughout most of their history, and particularly today, have the same contempt for the founding documents of our federated republic. But I'm not talking about 1861 or 2004; only the 1980's. After Reagan silenced the liberal crowd by appointing the unprincipled and incompetent Sandra Day O'Connor to the Supreme Court for the lone qualification of her being a "her," he was able to promote William Rehnquist to Chief Justice and appoint Antonin Scalia. The Bork reaction was the result of Scalia's appointment. The "Culture War" began with Robert Bork.

The issues were huge, boiling down to two: shall states have the right to make their own laws, and shall federal courts have the power to overturn the will of a legislature, federal or state, for reasons other than that the legislature violated the letter and/or meaning of the Constitution?

In other words, does the Constitution have any meaning at all, apart from any agenda of today's politicians and judges? And why is this important?

In my own extended family, no one is a lawyer, yet the spirit of fairness seems to be in our DNA. We may have other faults, but I'm at least proud of that. Following the rules in an activity is valued highly, whether it is participating in a business meeting or playing a sport. The powerful are held accountable; they can not monopolize a meeting and squash dissent.

Order comes from the reality that everyone, the powerful and the powerless, must abide by the same rules. Everyone's voice can then be heard, and no one's voice can dominate. The agenda of the powerful is put at risk by the common-sense logic of a representative of the people. Power corrupts, so the agenda of the powerful is not backed by reason, only by self-interest and emotional manipulations. The voice of reason can only manifest itself by representatives of the people, who are advocates for the people's liberty and interests, and against waste. Order is playing by the rules of the game.

What Ronald Reagan's nomination of Robert Bork inspired me to do, as a teenager, was to clarify the split between "left" and "right" when it comes to the Constitution. And upon doing that, I realized, that if the federal government departed from the Constitution and got away with it, then we are hardly better off than any dictatorship with their own fake Constitutions extolling the virtues of liberty and democracy. We don't have to even like or revere our own Constitution, but our options are to use it to protect our liberties, abuse it to advance our own power and wealth, or abandon it in the hope that a coup or violent revolution would produce something better. But to preserve order and liberty for today, we must abide by the Constitution: it is the rulebook for the federal government.

After too-lengthy and too-wasteful intellectual adventures, tempted most by the compromises of the Old Whig Edmund Burke and the pragmatism of the "really Old School" republican theorist Machiavelli, I realized by the year 2000 that, if we are to abide by the very rules the Constitution set for us, that voting for the Libertarian Party's candidates was the only way to go. And, by that act, I exposed myself to the truly freedom-friendly philosophy of libertarianism.

It was a long road, getting from there to here. But remembering images of Robert Bork against the power-mongering numb-skulls that ruled Congress in 1987, there is one thing I can say for Ronald Reagan: at least this time, by nominating Robert Bork, his actions were consistent with his stated principles. Ideas matter. Rhetoric matters. Federalism matters. Liberty matters.

I imagine that if events and circumstances were different, I'd have found some other route to still be a libertarian today. But it was Ronald Reagan and Robert Bork who forced me to confront the Constitution and its meaning. And that view never left me. Government, to the extent it has to exist at all, must at least play by its own rules; if not, all hope for liberty is lost. Even though Bork's nomination went down to defeat, I still believe that nominating him and sticking by him was the most principled thing President Reagan ever did.

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Scott C. Haley from Sacramento, CA writes:
June 30, 2004
Mr. Wilson,

Article I, Section 8, Clauses 1-18 of the U.S. Constitution delineates the areas in which Congress may pass laws. At least, that's how I read it. My question is: over the years, how was this limitation circumvented? Congress now passes laws dealing with anything and everything.

The only answer that I've been able to unearth is that Chief Justice John Marshall, perhaps more than any other member of the Supreme Court, was influential in greatly expanding the implied powers of the Federal Government. But there must be more to it than that.

Any help in understanding this usurpation of power would be greatly appreciated.

Sincerely,

Scott C, Haley

Scott C. Haley from Sacramento, CA writes:
July 1, 2004
p.s. What about the phrase ...the general Welfare of the U.S... in Clause 1. Isn't that more or less carte blanche for the Congress to pass laws on most anything. SCH

James Leroy Wilson writes:
July 9, 2004
I think the latter question should be answered first. How to sqaure the general welfare clause of Article I, Section 8 with the rest of the Constitution? If Congress can provide for the general welfare, what can it not do, if it is justified by promoting this?

Excellent question. It is one of the most defective parts of a defective Constitution. And please remember that I don't endorse the Constitution, only that I believe that if we avctually followed it, we'd be far better off. It appears that Goveurnor (that's his actual name) Morris from New York, the actual author of the Constituion, was a nationalist of the Alexander Hamilton mode who tried to pull a fast one to give the federal government far more power than was granted.

Even then, the original understanding, commonly excepted until Abraham Lincoln, was that the United States were plural. That is, Article I, Section 8 and the rest of the Constitution is to be interpreted as the Constitution of group of independent though united States, not the consololidation them all into a singular State.

The Constitution was to provide for the common defense of singular, independent *states*, not for a consolidated nation. Likewise, it was to provide for the general welfare of singular, independent *states*, not for what was on utilitarian grounds the best for the American people as a whole.

Think of the multi-state European Union today. If providing for the common defense or general welfare only meant diverting monies from small countries to large State capitals like London, Paris, Berlin, Rome and Madrid, would we indeed have a Union, or wouldn't we have highway robbery? A Union must equally serve the soverieign interests of the Luxumborgs, Irelands, and Portugals of the European Union, as it does the Frances and Germany's. Both common defense and general welfare referred to States, as independent, sovereign states, not as provinces of a consolidated empire.

Now, how did this mentality change? How did the American come to view the Constitution as a living document flexible to meet any and every need, desipte its clear language to the contrary? I suspect there are four chief causes, one following the other:

1. The Yankee Great Awakenings, which distinguished personal piety from public and political behavior, making holiness a personal, not a cultural matter.

2. The Subsequent divorce of Church and State, giving the State supremacy on all matters of public morality and law, all authortiy to establish Utopia, and the abolitionist movement -

3. Abraham Lincoln's curious desire to preserve the Union no matter the cost. Abolitionists had already ignited national hatred of the North against the South, which is part of the reason the South seceded in the first place. Lincoln, the first purely regional candidate to win the Presidency, had grand designs to build inter-continental railraods and otherwise favor Wall Street mercantile interests by collecting tariffs at the ports of Charleston, SC (Fort Sumter), Savannah, GA, and New Orleans, LA. Lincoln's lust for national supremacy and dictatorial Presidential power was supported by many South-hating abolitionists. Although Lincoln appeared by all instance to despise blacks, his willingness to destroy slavery in order to collect high tariffs gave him the moral support of abolitionists.

4. The Progressivism of the late nineteenth and early twentieth centuries. This had three distinct features: rabid nationalism as opposed to local control, vehement racism (since Lincoln, the ideal for Republicans and post-slavery democracts was deportation of blacks), and imperialism. The United States could have been a large-scale Switzerland, but instead decided to become like Great Britain.

The more power is centralized into a national government, the more intellectual corruption sets in. It is not up to us to say when and where the American people lost the Constitution. It is more likely that we never wanted it in the first place. Mr. Haley's suspicion that the General Welfare clause of Aricle I, Section 8 is a trap door to tyranny is probably on target. While I think the sense of the Constitutional Convention and the State Conventions that ratifed the document held to a different view, I think that this, which should have been clarified with a colon when a semi-colon actually appeared, is actually like the Second Amendment. The Second Amendment is stylistically confusing even when it is grammatically obvious, that the federal government is completely unable to abridge the individual's right to self-defense.

It is the very vaguness of the language of some parts of the Constitution that made me appreciate Robert Bork's serious analyisis of it. But it is also that vagueness that makes me a libertarian. It is not who decides if the proper meaning of the Constitutiton is good or bad, but rather what government, both local and natioanl, ought and ought not do. That is the study of economics and moral philosophy. We are not bound to defer to defective Constitutions, but to standards of justice and morality. Let us hold all Constitutions and all regimes to that standard, rather than to the standard of our own national traditions.



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