Podhoretz’s Constitution Problem
Love Affair with America: The Cautionary Tale of a Cheerful Conservative
is a significant work by a learned man. As an aesthete, I must note
Podhoretz’s book displays a commanding familiarity with literature.
It abounds in references ranging from Baudelaire and Bellow to Wordsworth
and Robert Penn Warren. These periodic nods to canonical figures
flow as gracefully as the narrative that binds them. Whatever else
may be said of him, Podhoretz is a superb craftsman.
analysis, while sound in many areas, deteriorates when he ventures
into constitutional waters. Insofar as the Constitution incarnates
a political anthropology, misconstruction of that document entails
a misunderstanding of the American polity and the culture from which
it derives. Unlike the bogus parchments of rogue regimes, our organic
law enjoys legitimacy. Thus, illegitimate governance follows from
constitutional errors are both severe and sincere. He is decidedly
not of the Critical Legal Studies ilk that would obliterate American
precepts in advancing a statist Shangri-la. (One of its founders,
Mark Tushnet, has argued that "socialism is required by principles
of justice."). To his credit, Podhoretz recognizes the extent
to which the Supreme Court has supplanted the political process
through what political scientist Marshall DeRosa terms "creative
jurisprudence." Nevertheless, Podhoretz goes astray in two
vital areas: federalism and separation of powers.
regard to the former, Podhoretz presumes a congressional mandate
that simply does not exist. At first glance, this presumption is
deflected by his excellent comments on judicial usurpation. Podhoretz
writes of "judicial imperialism" and deems it a "pathology,"
a precise assessment of how deviant and destructive that conduct
is. He goes on to write of "the notorious theory of ‘penumbras
and emanations’ that had been promulgated by Justice Harry Blackmun
and that supposedly justified the Court in establishing constitutional
sanction for rights that were never actually written into the Constitution
itself." (Penumbras and emanations had first been promulgated
by Justice William O. Douglas in Griswold v. Connecticut, but Podhoretz
is still on point.) Podhoretz also emphasizes the elitism embedded
in judicial imperialism when he remarks on "the Supreme Court’s
discovering things in the Constitution that ordinary mortals could
not find there but that were supposedly implied by this or that
then turns to the 1964 Civil Rights Act. He starts off with the
accurate observation that this law has been judicially capsized,
indicating "I had even denounced the Supreme Court as ‘a lawless
institution’ for having twisted the Civil Rights Act of 1964 into
a mandate for the very quotas and reverse discrimination expressly
prohibited by Title VII of that act." A emblematic example
of this contortion is United Steelworkers of America v. Weber. At
issue was a practice by Kaiser Aluminum and Chemical Corporation
where fifty percent of openings in a training program were reserved
for minority employees in an effort to increase minority representation
in their craftwork forces. Defying the lucid text of Title VII,
the Court found Kaiser’s set-aside program compatible with the statute.
In this vein Podhoretz is dead-on when he writes, "The Court
was now arrogating unto itself the power to perform acts of antinomian
torpedoes his critique, though, with his description of the 1964
Civil Rights Act as a law "in undisputed accord with the Constitution."
That’s a bold assertion; it’s also baloney (to use a mild adjective).
Title VII transcends the parameters of congressional authority,
displacing reserved powers and regulating private, intrastate activity
on a comprehensive scale. No doubt nationalist neoconservatives
(is that tautological?) applaud this exercise of power. (Dinesh
D’Souza prescribes the repeal of Title VII in The
End of Racism, but his view is outside the neoconservative
mainstream.) For the record, I consider employment discrimination
laws infringements upon proprietary prerogative and basic freedom
of contract, whether on the state or federal level.
Podhoretz’s approval of the Civil Rights Act, it’s no surprise he
also endorses an energetic presidency. He writes, "[T]here
had been cries during the Nixon Administration against the ‘Imperial
Presidency,’ and in passing the War Powers Act of 1973, Congress
had engaged in a bit of imperialistic expansion of its own at the
expense of the presidency." This is a colossal inversion of
legislative and executive roles. The War Powers Act is bogus not
because it contracts presidential power but because it implicitly
sanctions a non-existent presidential power to unilaterally commence
war. (No less a nationalist than Alexander Hamilton delineated legislative
primacy over war in Federalist #69.) Hardly an imperialistic expansion,
the War Powers Act is abnegation masquerading as assertiveness.
constitutional oscillations reflect a fundamental deficiency in
neoconservatism. For all the valid points it makes about social
breakdown and anti-American currents, neoconservatism remains incompatible
with American political rudiments. Yes, as in the case of judicial
overreach, neoconservatives can make cogent points. (Even the 2000
Republican Platform states, "The sound principle of judicial
review has turned into an intolerable presumption of judicial supremacy.")
Still, a movement that accepts executive arrogation and erosion
of state autonomy is not constitutionally viable.
it doesn’t help Podhoretz’s claims when he disparages paleoconservative
thought. He mistakenly refers to Chronicles: A Magazine of American
Culture as Chronicles of Culture and dismisses the Southern
Agrarians as "almost comically irrelevant in their opposition
to industrialism and all its works, not to mention the nostalgia
they felt for the antebellum South, which (slavery notwithstanding)
they regarded as a far superior civilization to the one that had
wiped it out in the Civil War." (I doubt Podhoretz has read
Mark G. Malvasi’s The
Unregenerate South: The Agrarian Thought of John Crowe Ransom, Allen
Tate, and Donald Davidson.) Historian Forrest McDonald and
other distinguished individuals have identified themselves as paleoconservatives.
Suffice it to say an erratic constitutionalist is in a tenuous position
to ridicule their orientation.
Love Affair with America is engaging and often elegant. It is
also a vivid example of why its author’s perspective is one to examine,
Kantor is a law student at Stetson University.