Special of the week; Issue 31-70

NDE are the national educational radio network presents special of the week from Yale University from its series called Yale reports. One way a conservative distinguishes himself from those with other political views is an emphasis on individual freedom. Why distributed prosperity and social mobility in such expectations. A Conservative will place primary reliance on the free market. He assigns a definite and positive but limited role to government. This Yale report expands the conservative viewpoint of Robert Bork and Ralph Winter Jr. professors of law. They touch upon the Supreme Court the university's role in politics and the crisis of rhetoric. Mr. Winter. Well Bob change is said by many today to be absolutely essential to the survival of American society. I think there's a rather sharp difference between the conservative view and the New Deal leftist view as to what are the right methods of social change. The New Deal Loftis if I understand them correctly rely on governmental action as the primary method to bring about change. A conservative on the other hand

views the government as a rather unbending and very rigid institution and institution not itself susceptible to change. In many cases and because the government serves both as a barrier to change as well as an instrument of change the change the government brings about tends to come convulsively. It's also quite inefficient because governmental change very often brings about results that were not anticipated. I think the examples you mention last week of rent control and minimum wage laws show that very well. We have to stress that a conservative position is not a position against change. Whether or not change in this society is essential it certainly is inevitable and no man in his right mind as any idea of stopping change. The issue between ourselves and the people on the left is how change occurs as you suggested. And I would think that as conservatives we would we would argue that capitalism is a very revolutionary kind of doctrine in that it permits change very easily and very

quickly permits people to pursue ones that they want freely and change occurs as the desires of people change. And as technology changes it also permits rather than one or two or three decision centers it permits the formation of thousands or hundreds of thousands of decision centers and thereby enables more groups and more individuals to get that change which they desire for themselves without affecting the rest of the society. That's right. It permits change to come about without getting together a large mass of people acting in concert politically. It permits people to bring about change at a local level and in small groups. In that sense I suppose our difference with the old New Deal leftist is one of flexibility of maximizing individual freedom while change occurs. But those differences these days tend to pale into insignificance and comparison with our differences with the new left the New Left. Far from relying exclusively upon government shows a disturbing

tendency to reply increasingly on change in society coursed through violence sabotage. Direct confrontation and that is generally excused with a statement that political democracy and free markets are both after all shams. Yeah the new love seems to be far more concerned with just smashing society they want it and then it is with creating a different kind of society. I find it very difficult to know exactly what kind of society the New Left is interested in creating. And I'm not sure I have any appreciation whatsoever of what ends they have or what kind of society they would build after they're through smashing the one we have. Of course many of them suggest that even to ask the question of what kind of a society they would build is to be a counter-revolutionary to be a man against change. First this system and then they'll discuss what should replace it. Well that's right I suppose if you object to their smashing the system you're looked upon as one who doesn't doesn't care about the ills of society. One who just wants to wants to resist all change anyone who

can't see how bad society is now certainly couldn't be counted upon to help build the bright new one they want. But I suppose one thing is clear and that is that American society is facing a crisis of very substantial alienation from the society among various groups. There is an evident lack of faith in the ability of society to survive this despair. As to the condition of society and an increasing resort to force as a method of social change. The causes of this alienation and willingness to resort to force are somewhat hard to locate in part because the new leftist is not terribly articulate. He talks a great deal but he doesn't articulate ideas very well. As you observe them it's hard to resist the conclusion that there is a large amount of sheer Neil ism in the position. And they could desire to smash things and systems for the sheer pleasure of smashing But beyond that I suppose we have to look to the question of why this

should occur in our society at this time. I suppose the first reason one can think of is a rather paradoxical one and that is that Revolutions tend to break out precisely who want to see a society is improving most rapidly. In our society today is improving very rapidly in terms of total wealth in terms of the distribution of wealth in terms of personal freedoms both as against governmental regulation and as against social pressure. All of these things are increasing rapidly and yet it is this time that the new left makes the discovery that we are living in a repressive society. Well that's not too surprising in view of some of the studies of revolution and particular one by plain Britain which indicated that Revolutions tend to occur when things are getting better rather than when they're getting worse. It certainly was true with the French Revolution and even more true with the Russian Revolution. Except for the brief period preceding that is and the Russian Revolution and indeed in many cases one finds that the revolution ends the improvement in the Soviet Union certainly there was an enormous that line

both in personal freedom and prosperity as a result of the revolution. The cause for revolution and revolutionary tactics occurring precisely when the society is improving I suppose is that for the first time expectations become realistic and then they then tend to run ahead of any progress improvement can possibly make. So contrary to justice Douglas's recent observations revolution does not break out when the heel is on the neck of the oppressed but when the heel is taken off the neck. While I would think that one can see examples of that in the east eastern Europe for instance liberalizing of some of the communist governments led to increased demands for more liberalization. And one can also see it in other countries in which real oppression exist political and economic and there seems to be no sign whatsoever of a revolution that in fact where the government engaged engages in efficient repression. The chances of revolution are much less and indeed the

level of dissatisfaction is much less. In saying this of course we should not be understood to be saying that this society was in the recent past an oppressive one. Simply that the society is now improving more rapidly in terms of prosperity and in terms of freedom than it ever has before in our history. But there are other causes for this alienation of the New Left. And one certainly I think is the rhetoric of the New Deal left has trapped us. An example of what I mean would be President Kennedy who in 1960 campaigned on the slogan we've got to get the country moving again. Even today one looks back at that time as a time of hope hope stimulated by by the slogan of a young president who took office and seemed about to bring us an energetic and humane government. The trouble was that the slogan he used implies that there were a great number of things wrong with the society which the

government could change. And the only program that he came into office with was the increase of the minimum wage law. And as the kid went on the demand stimulated by this earlier rhetoric became more strident and the left was driven to more and more tampering with the market which inevitably fell. I might also say that the prior rhetoric disabled the liberals at that time from putting the ills of society in perspective and from calling what were their natural constituents the result was that they had to escalate the rhetoric even more. And we began to talk about things like wars on poverty a war incidentally which began with a demand for funds without much thought as to how they were to be used. Well that war itself most a raised enormous expectations that were bound to be disappointed. I think we're right in stressing rhetoric I think it can't be too sharply emphasized because the liberal left platitudes have been taken seriously by this generation of

the young. And these platitudes were slogans political slogans and nobody bothered to explain it they had many necessary qualifications. And when they're taken seriously since they are impossible to fulfill the disappointment leads to anger and discontent. There's another aspect of rhetoric that we might talk about and that is the sheer excitement of it a great deal of revolutionary rhetoric today is engaged in apparently for the sheer excitement of the moment the rhetorician of violence as almost to today's teenager what Frank Sinatra was to yesterday's. And then he senses the crisis perhaps does not cause the rhetoric the rhetoric may be the crisis since we give the importance direct that we do. I think it's particularly fortunate the President Nixon's rhetoric has been as cool and low keyed as it has been. It's rhetoric which is quite appropriate to the real situation we face. It avoids raising impossible expectations and only by avoiding

that and avoiding political action that gets in the way of the marketplace as a generator of wealth. Can we begin to satisfy the legitimate expectations of the poorer groups in our society have I think that we ought for a moment to pause and talk about the role of the universities and the right are we mentioned. I don't want to overgeneralize there is a great split among academics as to the role of universities and their own role and one can easily over rate the importance of academics but they have I think in the last decade played a fairly key role in setting the tone for the rhetoric and to the extent that the left has been moving more to agitation. I think that the academics have tended to go along with that. Well in fact for some historical or sociological reason which I don't quite understand. Universities and I could emissions have been far to the left of American society in recent generations. And they have played a key role in the kind of new deal left reform that we have been complaining about here.

Yeah it is not at all clear to me why academics should play a terribly great role in the politics of the day. I don't see any particular reason why they have much to add as to government policies in the short run being persons presumably dedicated to research and scholarship. And I would also think that today more than ever with the fact that academics have not kept their own house in order and our universities are now to some extent in the grip of unreason that there may even be more reason not to look to academics for help on short term political questions. That seems to be an idea that is spreading rather widely through the community today. Well I think that to some extent the academics have have lost a great deal of their credibility because of what has happened in the universities. Well if the academics are to play a role in the political affairs of the day I should think that that role. What a pity to put those issues in perspective and to act as a force for reflection rather than a force

for action. But more worrisome I suppose than the effect of academics on the society is the effect. That the political action of the universities is having upon the universities themselves. There is an increasing demand that the university abandon its traditional role which is one of analysis and systematic accumulation of theory of knowledge and that it move instead actively into the political mainstream usually in a left wing posture. Well I think that's the direct result of the universities some universities and some academicians having attempted to act as a political force and having sought and often achieved an important role in government. The thought of universities playing a direct role in politics is worrisome because the universities are far too weak to play a direct role the society is not going to. Take his lead from university politicians so the university probably have no real impact and might

destroy itself as a center for research and reason in the process. That sort of thing would be partly so that nothing would be gained in a great deal would be lost. That's certainly true as the short run matters. Another thing that troubles me is that the attempt to serve to act as a political force seems to me to have caused some educational failures on the part of universities. Universities have not it seems to me emphasized at all the constraints reality places on a society's ability to cure whatever ails it. We seem now to have a generation of students who believe that paradise can be achieved if men of good will get control of the government. They didn't seem to be much appreciation on the part of some of the noisier students as to the very real limits on what government or society can do through group effort. Yes there are some economic facts and political facts and technological facts that moral indignation simply can't change. Ralph we've talked a great deal about a number of things but it's kind of curious that two people holding the jobs we do haven't said a word about the

role of law in our society and the relationship of law to social change. I think there is an attitude towards the rule of law that conservatives hold perhaps they hold it in common with a number of other persons. The conservative view is law I think in a double aspect. The first place is the question of how do we as a society control law so that it is legitimate in the second place is the question of what respect do we owe to the law even though we disagree with it. No doubt as to your first question how do we control law so that it is legitimate. I think that's a question of how do we operate through the democratic process the political process and relevant to that question it seems to me is the debate now going on with respect to the role of the Supreme Court. I was widely said that there is a great difference between what are called a broad constructionist and strict constructionist. I think you and I could both agree that that these terms are really not very accurate. They struck constructionist

who for instance is a bit simplistic because there is no one literal reading of the Constitution. It's simply not that kind of document. The broad construction if you are on the other hand has a lot of savings and it's difficult to know exactly what a broad construction this is. It is clear however that that at one extreme the broad construction is leave judges totally free to impose whatever rules they want on the country. And that's a lawless kind of view of the role of the court. The Supreme Court may look like something of an anomaly in a democratic society because it's not a representative or an elected body in fact it's a rather leave just institution and it gets its power to govern from the common consent of the governed who believe that the court's function is to interpret and apply the Constitution. They think that when the judge overrides what the legislature and the executive have done that he does so because something about the Constitution tells him. That the

majority is tyrannising over minorities or individuals in ways that are not allowed. But our faith in the Supreme Court has been badly shaken in recent years as has been repeatedly demonstrated that the court and in particular the Warren Court has not been applying results derived from the Constitution by some standard process of legal reasoning. But in fact has been applying its own subjective political values in many areas in the name of the Constitution. Yes and many people on the left today seem to think that the court need not rely either on the Constitution or on direction from one of the democratic branches of government in making its decisions. The real difficulty with that feel is that as it is it is an essentially anti democratic view of how the society ought to be governed. We must remember that judges are not elected they're appointed. They hold office for what is very often a long period of time. And there have to be some restraints on the judicial process. We live in an autocracy rather than a democracy.

The popularity with the last judicial activism is likely to decline if President Nixon does manage to remake the court to bring it philosophically more into the center of American society. Oh there can't be any question of that. Much of the popularity of the Warren court derives from the fact that the Warren court. Made decisions which those on the law on the left liked because they were they seemed the right political results to them. I think I think we can demonstrate that clearly by pointing out that many of these same people were advocates of judicial restraint in the 30s when the Supreme Court struck down many of the New Deal collectivist measures as unconstitutional. At that time people on the left made the assertion that judges ought not to be permitted to go ahead and apply their own subjective values to strike down the legislation coming from a democratically elected branch of government. Today these same people applaud the activist role of the Warren court

not because it is based on anything in the Constitution or on any firmly held view of how judges ought to behave but because they like the results. And that's all. It's important to stress though that the old conservative court which you speak was no better a court than the more modern court. No but but the fault the fault with it is exactly what is the fault with the Warren court. Well in this sense I think that President Nixon's talk about looking for strict constructionists to put on the Supreme Court does make some sense it's a political slogan. It has to be refined somewhat. But obviously the president is talking about finding judges who do apply those rules which are fairly apparent on the face of the Constitution or oppose it or in the history of its adoption. But beyond that. Defer more than the present Corps does to the will of the majority as expressed through the legislature. In that sense Nixon is talking about the location of the power to govern and he wants to place it increasingly in the

legislature rather than the court. And certainly that is a proper allocation of power in a democratic society. When the Constitution does not in fact bar the majority from governing. Yes if we continue with a policy of great judicial activism and no particular theory as to how judges ought to behave or how they ought to reach their decisions. The Supreme Court is inevitably going to be the center of a political fight and the selection of judges will be determined entirely on the basis of whether they're left wingers or right wingers. In the long run that can only destroy the moral authority in which the judicial power rests. I think it's worth emphasizing that in both the Haynesworth and cars Well controversy there were arguable grounds for challenging the appointment as there is with any appointment. I think one ground that was totally unjustified and that was the fear that they would not hold enough statutes unconstitutional. There was some talk particularly with regard to Judge Haynesworth that he would not be sufficiently innovative in his constitutional decisions.

It was not recognized however that what this criticism was in fact was that Judge Haynesworth would not be sufficiently willing to override popularly elected branches of government. In fact he was being criticized for having too much faith in the political process. A point is often overlooked is that this revolution that the court has worked in recent years in very many areas of life all aspects of voting come to mind a wide variety of issues of racial relations issues of welfare. One could go on at great length but the court has not ruled solely through the Constitution. Once the court tasted political power it began to do the same thing through its interpretation of statutes which is even more clearly an improper exercise of judicial power. We can mention in passing the anti-trust laws which have been almost completely remade by the Warren court and I believe that the labor laws as well have been modified substantially by the court rather than by the Congress.

There is no question that almost every close and some questions that aren't even close involving labor law are resolved by the court in favor of the labor unions. Indeed it would seem that during the previous Democratic administrations the unions apparently had a veto on appointment to the court. I think I think one general point ought to be made before we close our discussion of the courts. And that is that the liberals view of the court's role is symptomatic of their general impatience with democracy. They're unwilling to engage in the time consuming process of persuading others to their point of view. They want to mediate results they want to impose their will on others immediately. And so then the court seems nothing but an apt instrument for gaining change in that way. It is however anti-democratic. If you and I would suggest a most dangerous road to travel well we've talked about making law legitimate and controlling law itself and I think our conclusion is that well ought to be made through the political process that that kind of law is the most likely to be abated. There's one troubling thought

abroad in the nation today. And that is that law is a collection of technical rules which can be ignored any time someone thinks an overriding moral issue is present. I myself believe that we as a society ought not to feel hesitant about prosecuting those who engage for instance in force or inciting others to engage in force. I would think however that we have to make two qualifications going to how these prosecutions are to be carried out. The first one of course is the notion of procedural fairness of due process. We certainly don't want the indiscriminate application of legal sanctions. The government needs to be policed as a law enforcer as much as it needs to be policed as a regulator of the free market. Government I think is by a conservative even when the conservative admits that it is playing a role which is legitimate supply. No one wants to convict people through extorted confessions or through police brutality.

That's important to stress at a time when the judicial system is under attack and largely unjustified attack. There will always be in a system. Incompetent judges. Just as there are incompetent officials in all other areas of life. But that is what the review system the appeal system is designed to cure and we cannot as a society refused to prosecute for advocacy or incitement to violence or for actual and actual violence for fear that a trial may not be fair. The after all the prosecution of violence and threats of violence is one way in which we establish the premises of our political system. Yes I think that leads us into the second qualification which is that we have to permit free speech and free assembly. But the purpose of these constitutional rights is to ensure that the political process remains open and that everyone has a chance to persuade others to discuss the issues and to act

effectively as a political group. But a promise of such a system is that no one resorts to force to bring about change or to bring about a particular result. I think we have to note that confrontation politics often involves demonstrations which seem more suited to threaten violence than to further discussion of the underlying purposes of the right of association. I think where that's the case we ought not to assume automatically that such action is protected by the First Amendment. A curious thing is taking place and that is that some part of the radical left is using what used to be called the technique of the big lie. We're being told that our judicial system is repressive that our society is fascist and treated to similar epithets. And the curious thing is that far from being repressive we have reacted rather timidly and with self doubt when charged in that way. I think a lot of that goes back to the questions of rhetoric. We talked about before the rhetoric it keeps repeating that the society is sick that the society is very

bad and once that kind of rhetoric is believed one is bound to feel guilty about about prosecuting people who engage in forced to change it. It seems to me however that we simply have to resort to legal sanctions if we are to survive as a free society or oppression of the radical left wing is hardly a danger if one looks at the society around us most particularly the society around us which is consists of the universities repression is coming from the radical left wing. That's right of coercion existed on the universities entirely from the left and not from the right. Indeed even in the most recent cases of what could be called repression from the right the McCarthy era. One cannot remember a university being closed down because of any of the activities of this of this of the senator from Wisconsin. I think that what we're saying. That ours is a society and that any democratic and free society must share this characteristic. We are a society with tremendous emphasis upon process. Change takes place

if it takes place and when it takes place by argument by debate by political action. But it does not take place through a process which coerces others. That's a totalitarian theory. We ought to reject it when this kind of totalitarianism takes to the streets and becomes overt and I think it has to be met with law. The play A Man For All Seasons contains a moral for all of us both for those who would use law unfairly and for those who would defy the law. It occurs when Sir Thomas Moore who was later the Lord Chancellor of England was arguing with a friend named Robur. And Roper said So now you'd give the Devil benefit of law and more said yes what would you do. Cut a great road through the law to get after the devil. Rober said I'd cut down every law in England to do that and more replied. Oh and when the last law was down the Devil turned round on you where would you hide. The laws all being flat. This country's planted thick with laws from coast to coast if you cut them down do you really think you could stand upright

in the winds that would blow then. Yes I'd give the Devil benefit of law for my own safety's sake. It seems to me that's a moral we might accept as a conservative position about the rule of law and society. The conservative response part two with Robert Bork and Ralph with her junior professors of law at the Yale University School of Law scripts for these programs are available without charge by writing to Yale reports 1773 rail station New Haven Connecticut 0 6 5 2 0. This program originates in Yale's audiovisual center. NPR's special of the week Thanks Yale University for the recording of this program. This is Annie are the national educational radio network.