Norman Podhoretz’s Constitution Problem

by Myles Kantor

My 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.

Podhoretz’s 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 contortion.

Podhoretz’s 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.

With 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 clause."

Podhoretz 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 alchemy."

Podhoretz 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.

Given 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.

Podhoretz’s 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.

Moreover, 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.

My 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, not embrace.

September 8, 2000

Myles Kantor is a law student at Stetson University.