Among conservative constitutional scholars, George Carey best demonstrates the knack of remaining perpetually relevant. From his collaboration with his own mentor Willmoore Kendall in the 1960’s through his many writings on the federalist papers over three decades, some included in this volume, Carey has worked to show the value of the American founding to our own changing political predicaments. He meticulously searches out the roots of America’s constitutional tradition in William Blackstone and the English Common Law, as well as in the ideas of early American political leaders. Carey takes pains to contextualize our founding document as a political nation. He insists that the phraseology in which Madison, Hamilton, and Jay spoke of liberties, rights, and procedures came out of a particular legal understanding. Without reading the English jurists going back to Edward Coke and Magna Carta, and also American political dignitaries of the 18th century, Carey maintains, one cannot properly grasp the notion of “due process.” By the late 18th century, an entire body of dicta existed for this term, which had come to mean prescribed judicial procedure. Thus, Carey reasons, the phrase “due process of law,” which appears in the Fifth Amendment, was intended to refer to certain limits placed on the judiciary. This was the inherited meaning of that term in the Anglo-American world of the time. It did not signify, contrary to the statements of recent social activists, the power of judges to place restraints upon elected legislatures.
Carey’s strength as a constitutional interpreter is that he gladly performs drudge work in order to expose dishonest judicial activism. Like Lino Craglia and Robert Bork, he catalogues the constitutional abuses in which liberal judges have engaged since the 1950’s. He shows how some amendments and sections of amendments have become “privileged,” because of their compatibility with the “new morality” favored by judges and the media. Other amendments, like the Ninth and Tenth, have been pushed into oblivion because they have been deemed to have no strategic use. Judicial social engineers have tried to bypass states’ rights, and the entire concept of distributed power, in order to get what they want in a hurry. Most outrageously, argues Carey, judges have abused the Fifth Amendment’s “due process” in two ways: first, by allowing the federal government to use it, often quite arbitrarily, against states; second, by citing that phrase to increase their power, contrary to the clear intent of the authors of the Fifth Amendment.
Carey does not pretend that the Constitution’s authors rejected entirely judicial oversight. Though Article Three does not bestow upon the Supreme Court an explicit power of judicial review, in Federalist 78 Hamilton recognizes that the highest court may exercise such a function. In fact, he hoped that the judiciary would restrain the “momentary” inclination of the “representatives of the people” when their “dangerous innovations” were incompatible with “the provisions of the existing Constitution.” But Hamilton, and certainly Madison, did not believe that the Supreme Court should be allowed to legislate—or impose its political will against the stated will of Congress. Only legislative assemblies, according to Hamilton in Federalist 78, should be empowered to exercise “will.” In its role of judicial oversight, the Supreme Court was only offering judgments to guide the other branches of the federal government. And judicial oversight, as Hamilton understood that function, was to take place without “arbitrary discretion,” in accordance with the “clear tenor of the Constitution.” Where judges were not “bound down by strict rules,” there was no reason for legislators to listen to them. And the other branches of government long viewed themselves as free to ignore expressions of judicial activism which they found arbitrary. Both Andrew Jackson and the Reconstruction Congress ignored Supreme Court decisions. And in neither case was there a public outcry against constitutional abuse. Of the three federal branches, the judiciary was conceived as the weakest: its only expressed power in the Constitution is to function as the highest appellate court.
Carey proposes to deal with judicial usurpation by having Congress strip the Supreme Court of its by now abused role of oversight. He rightly reasons that there is little chance to settle this problem piecemeal, for example, by having Republican Presidents appoint nonactivist judges. Such an approach has involved moving one step forward and another back, as administrations change—and with them the power of judicial appointment. It is incorrect, as Carey notes, to draw distinctions between activist and nonactivist judges when what is meant by activism is the imposition of an eccentric social morality by judicial fiat. Carey documents how far the advocates of this morality have gone in twisting plain constitutional language in pursuit of their plans. As in the reference to due process, Carey shows that social activist judges disregard “original intention,” even when it is illuminated by centuries of legal exegesis.
What distinguishes George Carey from some paleoconservatives, and from all neoconservatives, is that he genuinely believes in popular government. His studies of the Constitution attempt to prove that the Founders were not hostile to the popular will, as has often been contended. What they wished to do when they instituted certain filters, as when they provided for the indirect election of senators, was to make sure that the popular will was also a “deliberate” one. Carey couples his populist arguments with an emphasis on responsible citizenship. He stresses that our true constitutional tradition is one of the people governing themselves through accountable representatives. Within this arrangement, the source of unity will not be philosopher kings who rule by social engineering but from a shared cultural framework, from what Carey’s preceptor Willmoore Kendall called “agreement about first principles.” Owing to his concern for the role of citizenship and the preconditions for popular government, Carey also recognizes the limits of modern democracy. True self-rule, he believes, requires cultural cohesion, a cautious immigration policy, and popular resistance to the “new morality” imposed by judges, public administrators, and the media.
His own prescription for defanging the Supreme Court is in line with his populist outlook. It may also be the only approach that is both constitutionally sound and efficient; namely, that a federal branch, which enjoys more democratic legitimacy and more authorized constitutional power, be entrusted with the job of controlling the Court. Unfortunately, this approach is unlikely to work, for at least three reasons. No Congress which we are likely to get, including the present Republican one, would ever carry out that deed of emasculation which Carey advocates. At the present time, even “conservative” Republican senator and presidential contender Phil Gramm is telling the public that he will do nothing to reverse Roe v. Wade, the century’s most controversial and least constitutionally defensible Supreme Court decision. Unless Carey believes that one can elect a truly conservative Congress, it seems unlikely that the legislative branch will move decisively against usurping courts. Also, congressmen have behaved at least as outrageously as judges in stripping the states of their constitutional rights. From the New Deal’s National Recovery Act and labor union legislation down to the Disabilities and Civil Rights Acts of 1991, Congress has moved relentlessly against the right of states to manage their internal commerce. They have done even more damage to our system of dual federalism by controlling the states’ voting practices, most recently through the passage of the unfunded Motor Voter Act. Finally, the Supreme Court, as conceived by Hamilton, was intended to fulfill the worthy role of calling attention to “dangerous innovations” being practiced by the people’s representatives. At times, the Supreme Court has performed this function: for example, as when it restrained the New Deal by bringing up the constitutional limits on Congress’s power to regulate commerce. Moreover, a prudent Republican Supreme Court worked to rein in the Radical Republican Senate after the Civil War. While the Court may never again exhibit such tender regard for our original Constitution, it is not less likely to do so than Congress. And there is no justification for believing that Congress, if left to its own devices, would develop a deeper appreciation for dual federalism than has been the norm since the 1930’s.
I raise these critical points because of my general sympathy for Carey’s politics. Unlike other, less educated populists, he does fully understand the causes of our present discontent. His essay “Majority Rule and the Extended Republic Theory of James Madison,” though originally published in 1976 except for the introductory note, remains as timely now as when it was first written. It argues that Madison’s demonstration, in Federalist 10, that the proliferation of factions in a growing republic is a safeguard against tyranny, has only diminishing value to our generation. What Madison did not foresee is the “disintegration of independent forces” with the emergence of social democracy and the changed role of government in our own society. Such “positive government” encourages cultural pluralism and the clash of particular interests to elevate itself above the fray. It designates itself as the only permissible source of direction in a society which it has pushed adrift. Carey criticizes Madison for what he neglects to say in Federalist 10, that there must be shared moral truths, definable national interests, and a common good, for American society to work.
In these sage comments on Madison, Carey also reveals the common problem of all populist conservatives. Appeals to the popular will are both necessary and constitutionally proper: necessary to challenge the undemocratic power of the political class and proper inasmuch as these appeals do have a constitutional basis. More problematic is whether there is still a recognizable “people,” as opposed to globalized consumers and an all-pervasive political class. If such a “people” does not exist, that is, if there is no possibility for a self-defined and enduring political community, all the talk about “returning power” is so much empty breath. Carey knows this, and suggests it repeatedly. But he also stakes his polities on a glimmering hope, that the slumbering popular giant may yet awaken. Without a better choice, I for one am willing to follow his lead.
[In Defense of the Constitution, by George W. Carey (Indianapolis: Liberty Press) 202 pp., $7.50]