He contrasts the anti-clerical thrust of that version in France during the Terror with the American
model's 'mutually reinforcing' relationship to the churches. Bender suggests that Tocqueville "attributed
[this] to the separation of church and state," but he argues that Tocqueville missed or misunderstood
American religious revivalism. This "religious insanity" which he places at the margins of our society
"was central and nourished the patriotism, morality, and public activism that Tocqueville so much
appreciated in America" (61). He had erred, according to Bender, because of his own and his American
acquaintances' conservative class-born sensibilities, but did clearly recognize it. 

      As with much else, religious utility seems most obvious "where equality of conditions prevail" (62)
because, in Tocqueville:

	"It tends to isolate them from one another, to concentrate every man's attention
	upon himself; and it lays open the soul to an inordinate love of material gratification."(63)

The observation that "equality leads men to very general and very vast ideas, is principally to be
understood in respect to religion:"

	"Men who are similar and equal in the world readily conceive the idea of the one God,
	governing every man by the same laws and granting to every man future happiness
	on the same conditions. The idea of the unity of mankind constantly leads them back
	to the idea of the Unity of the Creator; while on the contrary in a state of society where
	men are broken up into very unequal ranks, they are apt to devise ... many deities ... and
	trace a thousand private roads to heaven." (64)

     Men living in 'democratic periods,' however, find forms repugnant, and, rejecting 'subjection to forms,'
they are 'impatient of figures' because "symbols appear ... to conceal ... truths," and they are thus
"unmoved by ceremonial observances," attaching "only secondary importance to the details of public
worship." (65) Their usefulness will be limited to what is necessary for the perpetuation of doctrine.
Tocqueville wants to have "the principal opinions which constitute a creed, and which theologians call
articles of faith ... distinguished from the accessories connected with them" (66). While the primary
interest of religion is restraint of excessive indulgence, it is also an important justification for them in
honest pursuit (67). The sundry sects in America are seen as looking "upon their religion in the same
light," and these sentiments engage both clergy and lay alike (68).

     Tocqueville also enters the consideration that a tendency in men in democratic societies, becoming
more equal, and, as he contended, isolated, weak, and insignificant, is toward pantheism (69), but this
seems to be ameliorated by community spirit centered on this faith in reason, will, and the perfectibility of
man (70):

	"The special taste that the men of democratic times entertain for physical enjoyment
	is not naturally opposed to the principles of public order; nay, it often stands in need
	of order that it may be gratified. Nor is it adverse to regularity or morals, for good morals
	contribute to public tranquillity and are favorable to industry. It may even be frequently
	combined with a species of religious morality; men wish to be as well as they can in this
	world without forgoing their chance of another. Some physical gratifications cannot be
	indulged in without crime; from such they strictly abstain." (71)

     There seems to be an inference in the discussion of 'fanatical spiritualism' that perhaps a civil faith can
justify, too, guilt over materialism or success in obtaining it (72), a manifestation that breeds a restlessness
in them in their prosperity (73). The maintenance of public order, resting on the maintenance of political
institutions, is seen as a function, thereby, of this faith -- it imparts morality to such a community (74).

     Tocqueville does not mean, and expressly rejects, 'state religions,' as ultimately, even if they
momentarily serve, fatal to formal church structures if not governance and morality (75), but is definitive
as to the character of the faith necessary:

	"I should have loved freedom, I believe, at all times, but in the time we live
	I am ready to worship it." (76)

     In order to maintain order, and institutions, and civic virtue in republics, he says that "social power
superior to all others must always be placed somewhere," (77) and given human foibles, individually or in
governance, community order requires some such civic faith, (78) uniting each with the community and
the state. It thereby assists in the vigilance required for restraint of authority, as well, (79) thus reconciling
the distinct elements requisite for the free exercise of human will and reason. Not just for the maintenance
of order, though assuredly that, this first of our political institutions is a requisite of the maintenance of
the democratic republic, itself (80).

     It may be that Tocqueville's conceptualization of religion, even his civil religion, suffers from a too
constrained definition of religion. On the basis of a Durkheimian formulization, for example, as has been
discussed here, even the rather significant web he spun would be much stronger.

     One might easily go far in subscribing to Tocqueville's ascriptions of the American Union. For all their
apparent validity, there are some considerable inconsistencies and, as in-depth as his study would seem to
have been, in actuality, it was rather limited in sample time and space. On the other hand, given that, it's
relevance is considerable and affords the American reader, even a century and a half later, some valuable
tools of self-insight. More than that, there is an apparent great occasion of coherence between
Tocqueville's analysis and the political economic systems of Carey, Raymond, Peshine Smith, and
Lincoln, thus lending a form where he saw none. Intriguing as well are some of the relevancies his
account provides for contemporary political analysis. Whatever else may be said about Tocqueville, the
American spirit he describes very closely approximates that categorical imperative developed earlier here.
And that poses severe problems for especially such as Bellah's 'broken covenant,' but as well for a number
of other observers and 'visions.'



XVII  INVENTION PERFORMANCE

     In the Winter 1992 issue of Brookings Review (1), Robert Katzman joined the chorus of those
commenting on the alleged politicalization of the judicial confirmation process in recent years.  Especially
conservatives around the Republican Party have contended that the opposition which scuttled the Bork
nomination and left that of Clarence Thomas hanging by what was a very thin margin among such votes
orchestrated an aberrational campaign to defeat these two prospective appointees primarily or even strictly
on the basis of their ideological orientation. Katzman sees such campaigns as hardly extraordinary or
improper. Even the most superficial consideration of the matter in our history will bring to mind not
dissimilar contests involving Samuel Chase and the seminal Marbury case early on. Even granting that
there are differences between such episodes and the appointment of Justices today, one might, indeed,
wonder how so essential a decision could not be political. That is only compounded by the decisive
character that recent elevations have been perceived as heralding for the texture of the Court. 

     There may be a sense in which such sentiment that the court and the law should in some way be 'above
politics' had obtained a certain currency in the country. It may be an outgrowth of the opinion that certain
functions of government need to be of such a nature, perhaps arising our of Progressive Era beliefs which
helped spawn such institutions as the Federal Reserve ostensibly in that sort of light. However, it ought to
be considered that it is, as such, not a very valid contention. The Fed is, and of necessity has to be, a quite
political operation. Nonrecognition of that reality does not greatly enhance the empowerment of those
impacted by its decisions.

     Robert Bork, nevertheless, presents a very strong argument which puts such politicalization as has
occurred in a very different light (2). We shall return to his case in due course. 

     Certainly, it is not necessary to look back beyond the turn of the century to find the Court, and
questions of prospective appointment to it, as a hot political potato. The controversy over FDR's court-
packing plan is perhaps the most obvious case of that. In the period since then, however, the process may
have tended toward an appearance of becoming an almost perfunctory one. Into the 1960's, there would
not appear to have been much of a debate over the issue of confirmation. This may have been simply due
to the hegemony that 'liberalism' seems to have held over the larger political process throughout that time-
span. It was only after the mid-sixties that what has come to be called a conservative alternative began to
emerge as a strong enough challenge to that to be a factor. That is not, of course, to overlook opposition
from the so-called right to a number of decisions or personalities of the Court, but those were largely
reactive as opposed to what we have experienced of late (although the latter have been, in another sense of
the word, even more 'reactionary'). 

     Then, too, we have a phenomenon which James Sundquist has identified as a surge of Congress
assertiveness that has developed over the last few decades and could help to account for the rising tenor of
the conflict (Sundquist 1982). Some may trace it to the tensions growing out of Vietnam (and perhaps,
too, the civil rights movement). Arthur Schlesinger recognizes that, but roots it in the 'Imperial
Presidency' as typified during the LBJ and Nixon tenures (Schlesinger 1973). But to a great degree, such a
surge may be but a manifestation of a growing adversial partisanship, perhaps reflecting the conservative
impulse. A collection of analysts has juxtaposed the supposed rise of an 'Imperial Congress' along such
parameters (Jones and Marini 1988). And the American Enterprise Institute has offered an extensive
compendium addendum elaborating a similar erosion of separation of powers (Crovitz and Rabkin 1989). 

     Whether the veto has become any more common -- or the veto override -- may be a matter of who sits
where among the departments of government, but there is a trend toward heightening levels of challenge
to the legislative agenda of some Presidents, alteration of such programs in the Congress, and increasing
levels of Congressional staff, budget, and oversight (Huitt and Peabody 1969; Schwab 1980; Dodd and
Oppenheimer 1989; Oleszek 1978; Mann and Ornstein 1981; Hirschfield 1982; Ripley 1978; Davidson
1988; Rimmerman 1991; Berry 1990; Hall and Evans 1990; et al).

     The Murphy Commission has even suggested that our institutional structures be altered in the direction
of a parliamentary form. And, in the very recent period, the Speaker has been accorded the use of 'Air
Force Three,' although even Tip O'Neal could hardly be seen as comparable to Speaker Rayburn or
Cannon. The direction is beyond dispute, however. The blurring of departmental boundaries and the
encroachment on the executive by legislative assertiveness into the bureaucracies is very real, whether
justifiable or not. Were divided government (itself a major factor in the evolution) to persist as a
significant factor for the next many decades, the direction might lead to a diminution of the executive to
chief clerk status and a raising of the Speaker to a position of virtual Prime Minister. In the new
Republican Congress elected in 1994, Speaker Newt Gingrich has emerged as a prominent force in setting
the policy agenda, temporarily at least reversing some structural problems in the Congress in the process.

     It does seem that rarely have nominees to the Court been threatened with the hammer of Senatorial
consent to the degree that Bork and Thomas were. Whatever the relative merits of the nominees, a
somewhat parallel case of two rejections of appointees by Richard Nixon are somewhat comparable, but
even with that, the calculus is quite different. 

     Even the seeming excesses of the process over the Thomas nomination particularly may be more
reflective of simply the nature of our political system than any 'mess' which critics attribute to, in
Katzmann's words, "the injection of ideology" due to divided government and "unprecedented influence of
interest groups" (Katzmann 1992). He suggests again that any such view is called into question by history
(that is also the view of Lawrence Tribe, 1985, and others, of course). From both ends of Pennsylvania
Avenue, there have regularly been considerations of  nominee ideology, Katzmann says, quoting both
Lincoln and TR to sustain the proposition. John Rutledge, who had been named Chief Justice by
Washington, was rejected because he had opposed Jay's Treaty. Roger Taney had been rejected once
before he found his way (regrettably) onto the Court -- largely on political grounds in both instances. And
while there have been organized efforts to defeat nominations such as the opposition of business groups to
Judge Parker, the role which interest groups play in the overall process is very different today, and it
should no doubt be anticipated that this would be reflected in such crucial deliberations. Prior to the Bork
hearing, positions on specific issues do not appear even to have been very much scrutinized so severely
and Senators were lobbied directly by groups instead of by way of media to impact the process, according
to Katzmann. It does escape him, however, that even during the days of the Robber Barons there was not
the degree of intercourse between interests and Senators we seem to have had lately. Further, the rise of
'investigative journalism' has certainly enhanced any role the media has had -- one already greatly
increased by the permeation of especially the visual media into the public and the process.

     At this point, however, Katzmann really overreaches himself. He not only seems to be in advocacy of
what was new in the Bork case, but also relishes the heightened contest between branches, as though
encroachment in the process is to be accepted as welcome carte balance, and he defends the increased
demand for 'information' by Senators as not just a need, but almost a right or duty. (One wonders as to his
possible response to a Republican Senate rejection of a Democratic President nomination). This attitude is
tempered slightly as he wonder about the "propriety of activities outside the formal forums for advice and
consent" and impact of the current process on any willingness of people to serve in government. It is
worth considering his position that the process need not be of a static character and that attenuation may
be appropriate given political realities and the fact that this is supposed to be a republic. Of course, that
assumes that public attention denotes input in the process, which is neither a given nor as simplistic as
that infers. It might also be worth contemplating what became of the hue and cry over alleged 'litmus tests'
for Reagan and Bush appointees which did not exist when Clinton announced in no uncertain terms that
any appointee he named would support abortion on demand, or forfeiture of oversight which marked the
two Clinton nominations to the Court.

     There is a sense of tension between Bork's book and that of  E.J. Dionne (WHY AMERICANS HATE
POLITICS). Dionne's resolution of the disaffection rising in society of false choices would, as well, mean
the defeat of the 'constitutional' forces of Bork, who has problems with 'constitutional relativism.' Bork
complains of a temptation of politics to achieve its ends 'by whatever means necessary.' His nomination
ran afoul of a 'politicalization of the law' as part of a similar cultural impulse:  

	"Either the Constitution and the statutes are law, which means that their principles
	are known and control judges, or they are malleable texts that judges may rewrite
	to see that particular groups or political causes win." (3)

It is a troublesome direction. If anything goes, then the Constitution as a defense against tyranny is
ultimately effectively defunct.

     Lawrence Tribe's viewpoint is different on this score, of course (4). He argues that the Constitution was
not cast in concrete -- that it is essentially malleable, and that it must be to adapt in a changing world. But
Tribe's contention goes too far. He is arguing complete constitutional relativism. Bork's response is
directly to that point. We cannot have both a rule of law and Tribe's 'unconstitution.' The processes for
changing the law must fundamentally fulfill what Tribe seeks. He opens a dangerous can of worms. It is
not that judges operate in a vacuum outside of politics or do not effectively 'make law' through new
knowledge or interpretation, but that there is a problem when they change original intent to suit their
whims. That not only represents judicial usurpation in encroachment on legislative power, but over the
Constitution and even over popular will, in order to be 'politically correct.'

     Although Bork may weaken his argument in degree by finding Marshall's expansion of original intent
to promote the entire enterprise of the republic justifiable (an exigencies doctrine which alternatively may
enhance his case) in Fletcher vs. Peck, that exceptional reaching to social compact and natural right was
limited to that case. Even where Marshall stretched the Constitution to find Marbury, he "placed the
Court's power to declare laws unconstitutional directly upon the fact that the United States has a written
Constitution " (5) within defined limits. Something has been addressed to this point earlier in this
examination, as well, emphasizing the differentiation between such positions by Marshall which indicate
the law's elasticity within such delimitations from what has subsequently become much more free-
wheeling doctrine. Where the exercise began to go astray toward judicial activism was in Taney's Dred
Scott ruling, even though Chase had earlier in dissent cited "extra-constitutional authority." Taney created
an unbridled and undefined substantive due process which subsequently has been used by judges "to usurp
power the actual Constitution places in the American people." (6) Bork is not arguing strict construction,
but rather judicial restraint. On Dred Scott was founded Lochner which created the privacy on which Roe
would be grounded. Typically, the expansive 14th Amendment suffered the same fate, stretched beyond its
design structured around black citizenship to any 'person' the justices wished to reach, even when the
Constitution and representative democracy forbade it. That is not to bring into question the entire
'nationalization' of the Bill of Rights which has grown out of the 14th Amendment, but it may cast
aspersions upon the method by which it has been extended in piecemeal fashion. 

     Nor do the courts seem to limit themselves to Schlesinger's "Yale Thesis" of straining artifice,
precedent, and doctrine in 'disguised activism,' (7) but definitively reach to extra-constitutional realms to
reach the findings they want. Bork ran into opposition ostensibly due to his position on such things as
civil rights, but his argument over Brown clearly identifies the problem.  He did not oppose the principle
in Brown at all. Indeed, his constitutionally based argument would make the case and the law stronger
than it was. His contention it with the extra-constitutional base on which the actual decision was founded,
and Bork writes:

	"Since Brown is the test, the argument runs, and since original understanding
	cannot meet that test, then the philosophy is discredited, and courts may do
	as they wish, or as the intellectual class wishes, in all future policy issues." (8)

     On the other hand, the direction that 'civil rights' has taken in recent years (incongruent as it may be
with Brown's color-blind standard) necessarily cannot rest on constitutional basis alone, or at all, and
requires the new principle. Bork raises a similar debate on such cases as those concerning
reapportionment and poll taxes. The real crunch comes in Roe, on which he parallels Justices Stewart and
Black in objecting to Douglas' extra-constitutional and supra-constitutional manufacture of a crafted right
of privacy to fit the needs of that policy initiative. 

     But Bork is no happier over theorists of conservative constitutional judicial activist revisionism,
running through a discourse of critique of some of its prime exemplars. (9) Moral or constitutional
relativism generally is a problem, but in terms of the law, especially if it needs to 'transcend' the
Constitution. All law is political, it may be argued, but that is not the same as the contention which Bork
raised that there has been an effort to make the law both of one express politic at the expense of the other
and in contradiction -- or rather disregard -- for the Constitution, but also in support of what has been
termed moral relativism. 

     It might seem that liberal/Democratic agenda on civil rights had much to do with opposition to
Haynesworth, Carswell, Bork, and Thomas. Were that the case -- at least in the form taken in Brown --
they might be justified in their interloping extra-constitutional enthusiasm. There has been a place in
jurisprudence for a natural rights doctrine. But the general principles and precedents of law they have
established have reached far beyond 'civil rights.' Further, that supposed agenda has become one of some
considerable divergence from earlier advocacy (though admittedly it id difficult to envision a color-blind
law operating in a society not at all so color-blind), often even in diametrically opposed position to it, and
the case seems to be one where the agenda setters have set to establish that theirs is the only path to
heaven. No such ambition is palatable, tolerable, or valid. 

     Criticism of various aspects of the trends in our electoral process are commonplace. Regrettably, the
very characteristics viewed with such disdain have increasingly infected the judiciary, as well. It is Bork's
view (rendered before the Thomas hearings) that:

	"When the Court is perceived as a political rather than a legal institution, 
	nominees will be treated like potential candidates, campaigns will be waged
	in public, lobbying of senators and the media will be intense, the nominee
	will be questioned about how he will vote, and he will be pressed to make
	campaign promises about adhering to or rejecting particular doctrine." (10)



Continue