The real question before the court
WITH THE RESIGNATION of Justice Sandra Day O'Connor, and that of Chief Justice William Rehnquist possibly to follow, the political war over the next Supreme Court nominee will be dominated by talk of abortion, gay marriage, affirmative action, and religion's place in our public life. Yet the most important question a new Supreme Court will decide goes beyond any of these culture war issues. Namely, it will decide whether the United States should aim to be a ''good" country -- that is, one that strives to be the living embodiment of virtue -- or aspire to be a ''great" one: that is, one with a powerful and effective national government capable of building a strong and just society at home and extending America's responsibilities abroad.
Since colonial times, these two visions of American purpose have struggled for predominance in this country. For the advocates of what I call ''goodness," a bad society was monarchical in government, aristocratic in taste, pompous in religion, corrupt in practice, decadent in morals, and global in ambition. The United States would remain good only by distrusting elites and taking the views of the common man as gospel. Loyalty to a state, region, or ideology trumped obligation to the nation. Advocates of American ''goodness," such as Thomas Jefferson or John C. Calhoun, have habitually been suspicious of a large central government (and the taxes to sustain it). A good society, in their view, is one guided by fixed principles; it seeks what they hold true and virtuous and demands that people live up to those ideals.
Nineteenth-century Federalists, Whigs, and Republicans, by contrast, held to a competing vision of American purpose which emphasized national ''greatness" rather than individual goodness. Internal improvements, financed if necessary by government, were essential to put capitalism on a national footing. Sectional interests could not be allowed to undermine national authority. European societies, especially Great Britain, were to be emulated not feared. When military force was needed to protect the nation -- either during the Civil War or later in the century when the US became a world power -- it should be unsparingly used. Greatness values experience over principle; governing involves finding what works in the real world, not what might be true in a better one.
In the 20th century, support for the existence of a strong national government with international responsibilities, formerly the province of conservatives such as Alexander Hamilton and Daniel Webster, came to define the agenda of liberals such as Franklin Delano Roosevelt, John F. Kennedy, and Lyndon B. Johnson. Meanwhile, an insistence on small government, a virtuous citizenry, ties to the local community, and suspicion toward the rest of the world shifted from the sometimes radical anti-Federalists and Jeffersonians to the often reactionary Tom DeLay and the Christian right.
Now, for the first time since the 1930s, advocates of goodness have a chance to shape the US Supreme Court in their image. Indeed, the United States may be just one or two justices away from nothing short of a constitutional revolution returning America to those days when government was small, its authority weak, and its primary task the cultivation of virtuous citizens.
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In the first years of the republic, the one branch of government most sympathetic to the agenda of greatness was also the one most immune to public opinion: the Supreme Court. Chief Justice John Marshall was deterred neither by the text of the Constitution itself nor by the will of popularly elected majorities from ascribing to Washington the power to create a national bank or to regulate commerce between the states. Presidents from Jefferson to Jackson fumed, but without Marshall's judicial activism, the United States might never have developed the national economy that fueled its rise to global preeminence.
The Supreme Court also played a major role in fulfilling ideals of American greatness in the twentieth century. In fact the Court was involved in not one but two judicial reevaluations that made it possible to create a national society that would meet its responsibilities to its own citizens and its obligations to the rest of the world.
After initially opposing the strong role for government in American life implicit in the New Deal's economic reforms, the Court -- in what came to be called the ''switch in time that saved nine" -- reversed course in 1937 and permitted government regulation of the economy. Here the Court was following rather than leading public opinion; FDR had been overwhelmingly re-elected in 1936 and was threatening to pack the Court. Still, as in Marshall's day, the Court's activism strengthened capitalism, even if over the opposition of capitalists. The American economy would be lifted out of depression, not by the fatalistic laws of the free market, but by direct governmental involvement in such industries as agriculture, energy, and defense. At the same time, the United States would join the modern world; along with every European country, it would create a welfare state out of the conviction that strong societies are those willing to provide support to citizens in need.
The second major achievement for which the Court assumed responsibility lay in the way it interpreted the Fourteenth Amendment. Among the greatest of ideals on which America is founded are freedom and equality. Yet the Bill of Rights, which guaranteed Americans freedom of speech, assembly, the press, and religion, applied those rights only against acts of Congress, allowing the states, if they so chose, to violate them. The Fourteenth Amendment, ratified in 1868, promised a different approach; it proclaimed that ''No State shall...deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Although the post-Civil War Supreme Court interpreted the Fourteenth Amendment narrowly, the Court throughout much of the twentieth century held that one after another fundamental right was protected against the actions of state governments and (by implication) municipalities. Because all states were being held to the same standard, the freedom for which the United States stood was nationalized; one did not have the right to legal counsel in Massachusetts only to lose it in Utah. Thus the Fourteenth Amendment's insistence on ''the equal protection of the laws" made equality, for the first time in American history, a national objective.
In 1954, in its famous Brown decision, the Court, by a unanimous vote, declared segregated schools unconstitutional, and its reasoning was based squarely on the Fourteenth Amendment. ''Where a State has undertaken to provide an opportunity for an education in its public schools," the Court held, ''such an opportunity is a right which must be made available to all on equal terms."
The activism of the Supreme Court throughout the last half of the twentieth century created an enduring legacy of American greatness. Yet during the same period, the vision of a ''good" America, focused on small government and religious moralism, never died out. The South, which had long been the home both to those resistant to a strong federal presence as well as those who insisted on the importance of religion in shaping virtue, grew in population and shifted its allegiances to the Republicans. Great gains in achieving equality for women and minorities were made, but resistance to such gains also increased. Large numbers of Americans wanted a society that emphasized leading good and prosperous private lives rather than one making demands of them for large public purposes, and they increasingly elected presidents and members of Congress responsive to those wishes.
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Of the many varieties of conservatism that flourish in American legal circles today, one in particular -- often dubbed the ''Constitution in exile" movement -- would reverse nearly all the major changes in American jurisprudence that made the turn toward greatness possible. Strongly identified with the Federalist Society, an influential group of conservative theorists and scholars, the ideas of the ''Constitution in exile" movement color, to one degree or another, the reasoning of just about every prominent judge mentioned as a potential candidate for the Supreme Court. Even if this movement represents the most extreme form that a return to goodness might take, it is nonetheless instructive of the stakes involved in the next Court appointments.
The Court's willingness to accept the New Deal's economic regulation was based on the idea that Congress had widespread powers to regulate interstate commerce. But in 1995, Chief Justice Rehnquist, in Lopez v. United States, wrote a majority opinion stating that possession of a gun did not involve interstate commerce and that, as a result, a congressional ban on firearms in the vicinity of school property was unconstitutional.
Rulings since Lopez have been inconsistent; just last month, the Court relied on the commerce clause to ban medical marijuana. Still, some flavor of what conservatives have in mind in this area was conveyed during the debate over the confirmation of Janice Rogers Brown for a seat on the powerful Washington, D.C., Court of Appeals. Brown believes that the New Deal introduced socialism into the United States and that economic regulation is a form of slavery. The US, in her view, ought to return to the days of Lochner v. New York (1905), when the Supreme Court threw out efforts by state governments to regulate industry in the name of the common good.
It is, of course, possible that Mr. Bush will not appoint a judge as extreme as Brown. But just one new conservative on the Court can tip the balance back to a less expansive interpretation of the interstate commerce clause, and, with that, a greater willingness to rule in favor of property rights and against regulation in the interests of all. (Perhaps to delay this prospect, the current Court, in Kelo v. City of New London, recently upheld the use of eminent domain in a decision widely viewed as a defeat for property rights.)
Clarence Thomas's concurring opinion in the recent Texas Ten Commandments decision, Van Orden v. Perry, gives some idea of what life would be like if the Court no longer protects fundamental rights against actions by the states. The Establishment Clause of the First Amendment, Thomas opined, is not applicable against the states, leaving each state free, short of coercion, to establish religion as it chooses. If future judges were ever to endorse this position, minority rights, specifically the rights of non-believers and non-Christians, would depend on where they lived. In a 1995 dissent in a term limits case, Thomas had written that ''the ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole." Thomas's radical jurisprudence challenges not only the legacy of the New Deal but the entire structure of federal authority that emerged out of the North's victory in the Civil War.
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No matter who is named the next justice, it seems inevitable that Washington's power to regulate commerce will weaken, just as the ability of the states to curtail individual rights will be strengthened. If that were to happen, it follows that women can be deprived of abortions and gays prevented from getting married.
For this reason alone, the battle over the next appointments to the Supreme Court will be one more chapter in the American culture war. But to put the culture war in the foreground is to miss the huge changes taking place in the background. Equality and freedom are realizable only in the presence of a strong and effective national government. Remove the latter, and the former are threatened.
The Supreme Court remains the most undemocratic branch of government, and its very resistance to public opinion could push the United States toward goodness just as in the past it moved it in the direction of greatness. Those who believe in the latter more than the former can only hope that any new justices will be inspired by the responsibilities of their office to do what is right for the country, not beneficial to a party, popular in a region, blessed by a religion, or inherent in an ideology.
Alan Wolfe is director of the Boisi Center for Religion and American Public Life at Boston College and is writing a book on whether democracy still works in America. 