Interpretation

A JOURNAL
Fall 1999

J.OF

POLITICAL PHILOSOPHY
Number 1

Volume 27

Clark A. Merrill

Spelunking

in the Unnatural Cave: Leo

Strauss's Ambiguous Tribute to Max Weber

William Walker

Stanley

Fish's Miltonic Interpretation

of

Martin Luther Discussion

King

Thomas L. Krannawitter

Constitutional Government
The Federalist Book Reviews

and
of

Judicial

Power: The Political Science

Charles E. Butterworth

A Cornucopia

of

Rousseau Translations:

The Collected Writings of Rousseau, Edited by Roger D. Masters and Christopher Kelly

Rousseau, the Discourses and other early Political Writings, and Rousseau the Social Contract and other later Political Writings,
edited and

translated

by

Victor Gourevitch

Peter Augustine Lawler

Nature, History,
Modern

and
and

the Human Individual

Liberty

Its Discontents,

by

Pierre Manent
Ronald J. Pestritto

The Supreme Court

and

American

Constitutionalism,
Wilson
and

edited

by

Bradford P.

Ken Masugi

Interpretation
Editor-in-Chief Executive Editor General Editors
Hilail Gildin, Dept.
of

Philosophy, Queens College

Leonard

Grey

Seth G. Benardete Charles E. Butterworth Hilail Gildin Robert Horwitz (d. 1987) Howard B. White (d. 1974) Christopher Bruell Joseph Cropsey Ernest L. Fortin John Hallowell (d. 1992) Harry V. Jaffa David Lowenthal Muhsin Mahdi Harvey C. Mansfield Arnaldo Momigliano (d. 1987) Michael Oakeshott (d. 1990) Ellis Sandoz Leo Strauss (d. 1973) Kenneth W. Thompson Terence E. Marshall Heinrich Meier

Consulting

Editors

International Editors Editors

Wayne Ambler Maurice Auerbach Fred Baumann Amy Bonnette Patrick Coby Elizabeth C de Baca Eastman Thomas S. Engeman Edward J. Erler Maureen Feder-Marcus Pamela K. Jensen Ken Masugi Will Morrisey Susan Orr Charles T. Rubin Leslie G. Rubin Susan Meld Shell Bradford P. Wilson Martin D. Yaffee Michael P. Zuckert Catherine H. Zuckert Lucia B. Prochnow Subscription rates per volume (3 issues): individuals $29 libraries and all other institutions $48 students (four-year limit) $18 Single
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E Mail:

Interpretation
A JOURNAL
_L

OF POLITICAL PHILOSOPHY

Fall 1999

Volume 27

Number 1

Clark A. Merrill

Spelunking

in the Unnatural Cave: Leo

3

Strauss's Ambiguous Tribute to Max Weber

William Walker

Stanley Fish's
Martin Luther Discussion

Miltonic Interpretation

of

King

27

Thomas L. Krannawitter

Constitutional Government

and of

Judicial

Power: The Political Science The Federalist Book Reviews

43

Charles E. Butterworth

A Cornucopia

of

Rousseau Translations:

The Collected Writings of Rousseau, Edited by Roger D. Masters and Christopher Kelly

Rousseau,
Contract

the

Discourses
and

Political Writings,
and other

and other early Rousseau the Social

later Political Writings,

edited and

translated

by

Victor Gourevitch Human Individual

71

Peter Augustine Lawler

Nature, History,
Modern

and the
and

Liberty

Its Discontents,

by
81

Pierre Manent

Ronald J. Pestritto

The Supreme Court

and

American

Constitutionalism,
Wilson
and

edited

by

Bradford P.

Ken Masugi

89

Copyright 1999

interpretation

ISSN 0020-9635

Interpretation
Editor-in-Chief

Hilail Gildin, Dept.

of

Philosophy, Queens College

Executive Editor General Editors

Leonard

Grey

Seth G. Benardete Charles E. Butterworth Hilail Gildin Robert Horwitz (d. 1987) Howard B. White (d. 1974) Christopher Bruell Joseph Cropsey Emest L. Fortin John Hallowell (d. 1992) Harry V. Jaffa David Lowenthal Muhsin Mahdi Harvey C. Mansfield
Arnaldo Momigliano (d. 1987) Michael Oakeshott (d. 1990) Ellis Sandoz Leo Strauss (d. 1973) Kenneth W. Thompson

Consulting

Editors

International Editors

Terence E. Marshall

Heinrich Meier

Editors

Wayne Ambler Maurice Auerbach Fred Baumann Amy Bonnette Patrick Coby Elizabeth C de Baca Eastman Thomas S. Engeman Edward J. Erler Maureen Feder-Marcus Pamela K. Jensen Ken Masugi Will Morrisey Susan Orr Charles T. Rubin Leslie G. Rubin Susan Meld Shell Bradford P. Wilson Martin D. Yaffee
-

Michael P. Zuckert Manuscript Editor Subscriptions

Catherine H. Zuckert

Lucia B. Prochnow Subscription rates per individuals $29 libraries

students volume

(3 issues):

and all other

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(four-year

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Single

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outside

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or

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U.S.: Canada $4.50 extra; $5.40 extra by surface mail (8 longer) or $ 1 1 by air.
.00

weeks

Payments: in U.S. dollars

a

and payable within

by
the U.S.A.

financial institution located (or the U.S. Postal Service).

The Journal Welcomes Manuscripts

in

in

Political Philosophy

as

Well

as

Those

Theology, Literature,

and

Jurisprudence.

contributors should

follow The Chicago Manual of Style, 13th ed. or manuals based on it; double-space their manuscripts, including notes; place references in the text, in endnotes or follow current journal style in printing references. Words from languages not rooted in Latin should be transliterated to English. To ensure
impartial judgment
other of

their manuscripts, contributors should omit mention of their

work; put, on the title page only, their name, any affiliation desired, address with postal/zip code in full, E-Mail and telephone. Please send four clear copies,
which will not

be

returned.

Composition
A Division

of

by Eastern Composition Bytheway Publishing Services

Binghamton, N.Y. 13901 U.S.A.

Printed by The Sheridan Press, Hanover PA 17331 U.S.A.
Inquiries:

(Ms.) Joan Walsh, Assistant to the Editor interpretation, Queens College, Flushing, N.Y 1 1367-1597, U.S.A. (718)997-5542 Fax (718) 997-5565
interpretation_journal@qc.edu

E Mail:

Spelunking

in the Unnatural Cave:

Leo Strauss's Ambiguous Tribute to Max Weber

Clark A. Merrill
Salve Regina

University

How then
man?

should

human beings live? What is the best

ends of

political order

for

Must

social science restrict

itself to accumulating knowledge

policy,
whatever

about possi

ble

means

for achieving the

says

those ends may

be,

without

ever

venturing to establish or judge the ends themselves? Max Weber's fact-

value

distinction

precisely that:

no

Ought

can ever of our

Why

is that? Because the Is, the Yet

politics must

sensible

facts

be derived from any Is. existence, do not reveal

our proper ends as

silent.

human beings. In
constantly

our moral perplexity, the universe remains

assert the

Ought. Should

political candidates

accept

large financial The language

contributions?

Should the law

when

execute murderers?

Should
public

the state compensate an

good?

individual

it takes his property for the

of politics and

and unjust,

honorable

is necessarily the language of good and bad, just dishonorable. How are such questions to be answered The
question

if

we cannot

know the
was

end at which we should aim?

before

us

is

whether make

Weber

right, whether science or human to

political

reason

cannot, in
analysis of

fact,
fact

any

contribution

discourse beyond the bare

and comparison of means.

Since

fifth-century Athens,

cerned with the relation

political philosophy has been the science con between knowledge and action. Within the long tradi

tion of

political reason

philosophy, the

family

of

teachings that
gone

affirm

the capacity of

human

to tell us how

we should

live has

by

the name of natural

right or natural

law. The

greatest and most

intriguingly
and

ambiguous exploration

of

Weber's

social science

from the

viewpoint of political

Leo Strauss in the

I

second chapter of

Natural Right

History.1

philosophy is that by In this essay, in that

propose to undertake a

detailed

analysis of

Strauss's

argument

densely

written chapter.

THE SOCRATIC ANSWER

Strauss begins the

Historicism
can
claims

chapter with a

terse series of assertions and distinctions.

natural

to have

demonstrated that

right, the

teaching

that we

derive knowledge

of our proper ends

from knowledge

of what

is, is impossi

ble because philosophy is impossible. Philosophy, to be possible,

requires access

interpretation, Fall

1999, Vol. 27, No.

4
to

Interpretation
an absolute

horizon beyond the limited,

place.

contingent

horizon
to
what

given us

by

our

particular

time and
not

Philosophy

requires access

is

true without

qualification,

simply

what appears

to be true to us here

and now.

But the

possession of such an absolute

horizon actually entails far less first imagine: philosophy does not require possession of wisdom or knowl edge of the good; it merely requires knowledge of the fundamental problems, the fundamental alternatives, that constitute the permanent horizon of the human
at
condition.

than we might

Thus, philosophy
possession
of

requires

far less than

requires a

natural right.

Natural

right

implies the

wisdom;
we should

it

solution

to the fundamental

political problem of

how

live.

"[P]hilosophy
right"

and not the sufficient condition of natural

(NRH,

p.

is only the necessary 35).

Yet
politics

political

philosophy

without a solution

to the fundamental problem of

us

is

of no practical
would

value; it cannot tell

goal of action

how to

act.

Such

a political will.

philosophy

leave the

to blind choice, to arbitrary

Having laid
"The
whole

out these

distinctions, Strauss

galaxy

of political philosophers

all adherents of natural

right, assumed

then makes an astonishing claim: from Plato to Hegel, and certainly that the fundamental political problem is
pp.

susceptible of a
provide not

final

solution"

(NRH

35-36).

Philosophy
for

can

just the necessary but the

sufficient condition

natural right;

potentially it is
solution

conceivable that the philosopher was

may eventually But

what

possess wisdom.

This
It

discovered
name:

by

the discoverer of political philosophy, and

answer."

Strauss

calls

it

by

his in

the "Socratic

is this Socratic

answer?

consists

this:

"By

realizing that

we are

realize at the same time that the most

needful, is
dom"

quest
p.

for knowledge

of

of the most important things, we important thing for us, or the one thing the most important things or quest for wis

ignorant

(NRH,

36).
of natural

This answer, this foundation

concerned with

right, is
so

deeply

shocking to

anyone

active,

political

life. Indeed, it is may in fact The Socratic

we should answer

most readers will

long

resist and

prove

shocking that the minds of finally impermeable to the

full implications
we can

of

this answer.

answer tells us that the one

thing

know for

certain about

how
This

live is that the final

end of

human

life is to live
the

as a philosopher.

denies that

political or practical

life,

life

of

action, possesses any rational order, any source of guidance, within

all arguments

itself. For Strauss, society in

nature

intended to
(or

ground the moral conventions of

are, in

fact,

neither rational nor natural. at

Thus, according

to

Strauss,
the

the

Socratic
all

answer approves

least does
lust for

not

deny)

the claims of
can stem

historicists:

strictly

political or moral claims about

the good

only from

well-intentioned

ignorance
does

or cynical

power

or, more compre

hensively, from

the random conjunction of

answer

historical forces; in short, from fate.

the standards of political

Yet this Socratic

mere arbitrariness.

not reduce

life to
It has
answer

Instead, it

preserves a peculiar sort of natural right.

only

one principle:
not

the goodness of the philosophical life.

with

Of course, this

does

entirely do away

many

of

the

moral precepts with which we are

Spelunking
all

in the Unnatural Cave

young
of man or

familiar: how

can one philosophize or

how

can a

woman

become seriously
enslaved

attracted to the philosophical

life

whose soul

is distracted

or

by drunkenness, lust,
on

greed,

or

any

other

form

bodily

intemperance?
political

But morality
men.

basis is greatly reduced from the status given it by Morality, in light of the Socratic answer, is purely instrumental,
this
varied at

a means

to the end of philosophizing, a means which may be

need.2

This teaching is difficult

point
vient

so

foreign
let

to our usual understanding of morality that

it is

fully

to grasp,

alone accept.

Strauss himself

put

his finger only

on the

that makes it so shocking: "[I]f these virtues are

understood

as subser

to philosophy and for its sake, then that is no longer

virtues."3

a moral

of

the

The

question of

the best order

for

active

life

can

understanding be answered

only by referring to the needs of the contemplative life. The best political order is that which in the given circumstances best conduces to philosophizing by
those who are able to philosophize.

In

a certain sense,

nothing be

more needs to and

be

said.

Yet the

whole of

Plato's

Republic, Aristotle's Politics,

show that a

the entire corpus of later

are two

political

lot

more can

said.

There

broad

reasons

philosophy for this loquacity:

possible political

the philosophers must adapt their teachings about the best

order as circumstances

change, and

they

must also

find

new words

to

justify

the

life

of

philosophizing to the vast

majority
an

of mankind who cannot think

action.

beyond

the political, beyond the exigencies of the life of

right will always

This

means

that natural
an

have two faces:

right

inward,

permanent

face,

the

Socratic
one

swer, the

real

natural

teaching, that quest for

wisdom

is the

thing

needful; and an outward, changing the principles

second are
of

face,

the apparent natural right

teaching, that

is

morality have a direct basis in nature. Only the first is true; the literally false but serves the truth. Both faces of political philosophy

necessary to implement the Socratic answer as long as philosophers do not a most unlikely event, as the Socrates of the Republic is perfectly aware. rule

Strauss does

not

say he

accepts the

Socratic

answer.

After all, if

one rejects the

Socratic answer, one only denies that philosophy in the form of political philos ophy can be useful to the active life; philosophy itself remains possible. Thus
there are true philosophers, the

Epicureans,

who reject

the Socratic answer and

have little

use

for

political philosophy.

Now the life

proclaims the

of reason,

the quest

true, highest
the one

end of man,

for wisdom, which the Socratic answer may lead its devotee to conclude that

"wisdom is
that reason

needful"

not

thing
for
man

(NRH,
be

p.

is

not enough

to

achieve

36). Reason may demonstrate his highest end; but, as Strauss

disavowal"

says, "the very disavowal of

reason must

reasonable

(p. 36). This

possibility
permanent

we might call

it the

anti-Socratic answer

constitutes one of the

features

of the absolute

horizon that

makes

philosophy Yet

possible.

In

this way, philosophy itself always preserves, not only the possibility of revela

tion, but the possibility of discovery that the human

man's absolute need good

for

revelation.

reason's own

may

require more than reason appears

to put

Interpretation
(or

reason and unreason

faith)

on

the same footing: each appearing to be the

object of a choice

that,

on this premise, can

only be arbitrary,

since reason

itself

is

principle.4

one of

the alternatives, not the common

FIRST ACCUSATION: WEBER AS NIHILIST

Strauss introduces his discussion

tim of this very confusion, that

of

Weber

by

saying that Weber

the

was a vic

it led him to

posit

ultimate equivalence of

faith
with

and reason,

and that

consequently he

rejected the

Socratic

answer

and,

it,

the possibility of natural right and a useful political

entire analysis of

philosophy.

Strauss's
an

profundum.5

abyss,
shown

a reductio ad

Weber's teaching takes the form of a descent into Each of Strauss's arguments or explications

is

to be
a

partial and provisional

by

the next step, which

descends to

a still

deeper level,

truer understanding of Weber's

fundamental

teaching.

Facts

versus

Values

Strauss begins
even

by

examining that

part of

Weber's teaching
social

remembered

by

the most casual graduate student.

are with

values

strictly
Who

entirely heterogeneous. facts; values lie beyond its

from

According Science, including

competence.

to this teaching,

facts

and

science, deals

aside
still

certain

big

children who are of

indeed found in the

natural sci

ences

believes that the findings

astronomy,

biology,
. .

physics, or chemistry

could teach us ences a

If these natural sci anything about the meaning of the world? lead to anything in this way, they are apt to make the belief that there is such of the universe die out at its thing as the very
"meaning'
roots.6

Weber
answer

goes on to quote

Tolstoy: "Science is
"

meaningless
us:

because it
'What

gives no

to our question, the only question

live?'

important for
to

shall we

do

and

how

shall we

(p. 143). "the

According

Strauss, Weber
of all

attributes sci

ence's meaninglessness to

most

fundamental

oppositions, namely,

the opposition of the Is and the

value"

Ought,

or the opposition of

reality

and norm or

(NRH,
of

p.

41). Yet, Strauss

Is

and

Ought does

immediately points out that the heterogeneity not logically entail the impossibility of an evaluating social
from
some nonempirical source true

science.

If

science possessed

knowledge

of

Ought, Thus, when Weber

the

this would

he

reveals

that he

legitimately guide all scientific investigation of the Is. maintains the impossibility of an evaluating social science, rejects any possibility whatsoever of knowing the Ought.
any science,
empirical or

"Weber denied to

man

rational, any

knowledge,

scien not

tific or philosophic, of the true value system: the true value system

does

Spelunking
exist; there is
a

in the Unnatural Cave

'

variety 41-42).

of values which are of

the same rank, whose

solved

demands
rea

conflict with one

son"

another, and whose conflict cannot be

by

human

(NRH,

pp.

The Reduction

to

Nihilism

Having

revealed

the actual assumption underlying Weber's fact- value dis

tinction, Strauss
contend that

makes

his first (and,

as

it turns out, provisional)

accusation:

"I

Weber's thesis necessarily leads to nihilism or to the view that every preference, however evil, base, or insane, has to be judged before the tribunal of reason to be as legitimate as any other (NRH, p. 42).
Yet Weber himself
appeared

preferenc

to accept this same conclusion about the human

predicament, that we must embrace values without the ability to demonstrate

rationally why

one value

is

superior

to another, as evidence of a new, austere,

and elevated conception of

human dignity.

Man's dignity, his

brutes,
values

being exalted far above everything merely natural or above all in his setting up autonomously his ultimate values, in making these his constant ends, and in rationally choosing the means to these ends. The
consists of man consists

dignity
(NRH, Strauss

in his autonomy, i.e., in the individual's ideals

or

freely

choosing his
art.'

own values or
44)7

his

own

in obeying the injunction: 'Become

what

thou

p.

sets about

analyzing
what

what

Weber

What is the
chooses to

dignity

possessed

by

possibly mean the autonomous human

can

by this injunction. being who freely

the

become

he is? Strauss does this

(The

by

pursuing that injunction

clarification of what

through six transformations, each representing a

further

injunction

first,
shalt

really to "become what thou

must

mean.

art"

following appears to imply

not
ideals"

summarizes

NRH,

pp.

44-47.) At
"Thou
what or
rational

have

ideals."

But Weber does

demon."8

a nonarbitrary believe human beings

standard:

can

know

those ideals are.

Thus to "have

can

only

mean

"Follow thy

god or

Political life But

can never

"Follow thy be based on the

demon"

apprehension of a common

good; the

essence of politics must always

be

conflict

among

blindly

asserted values.

even

this formulation hides the implication

as good.

that these gods or

demons

can as

easily be bad

The

fully

articulated

demon."

imperative is "Follow thy demon, regardless of whether he is a good or evil Translated into nonmythic language, this injunction becomes "Strive
baseness."

resolutely for excellence or But Strauss pushes Weber's meaning

usual,
moral meanings

still

deeper. Weber did

not attach

the

to

"excellence"

"baseness."

and

No

one can

distinguish base?

a good cause

from

bad cause, is

and

this

incapacity
can

underlies
mean

Weber's belief that

excellent and

the

essence of politics

conflict.

What then

he

by

8
He

Interpretation
cannot

guishes

dedication to

distinguish among causes; instead, Strauss argues, Weber distin a cause, any cause, from lack of such dedication. "Excel

lence

now means

devotion to

cause, be it good or evil, and baseness means

p.

indifference to
now, been
captured

causes"

all

(NRH,

46). All the

usual

moral

content

has, by
remains,

squeezed out of command:

in the

Weber's imperative, but "Thou shalt live

an attenuated core

passiona

Where

all values are

equally empty

of cognitive

content, the laurel goes to the

most passionate.

The
the

degree

of

energy
of

or commitment will supplant

the quality

of the action or

"authenticity."

intended

outcome as

the criteria

by

which

to judge an actor's

It

is in light
Weber's
out

this preference

for

passionate commitment

that we must understand

contempt

for "specialists
must

without spirit or vision and voluptuaries with would

heart."

Yet Weber
this

have known that he

ultimately be driven to
strict

deny

even

core or remnant of objective

morality;

conformity to the
apathy, com

fact-value

dichotomy
self-

does

not permit one

to

praise passion over own

mitment over

absorption.

Thus, following Weber's

shalt

logic, Strauss draws

out

the final transformation or reduction of the imperative "Become what thou

art."

It

can

be

stated:

"Thou

have

preferences.

(Note that Strauss twice

nihilism,

used

the word

"preference"

in his

original accusation of

NRH,

p.

42.)

If this is Weber's nihilism, it

still rests upon a

ledge

somewhere above the

final

abyss.

The

passionate

man, even the man

who

ought to choose

his

preferences responsibly.

Though

each of us chooses

simply has preferences, in a

moral void without objective

norms, in darkness

without external

light, Weber
what,
ac

holds

onto one

last

principle:

intellectual honesty. One

must choose

cording to one's own internal light, one believes to be right. Weber would have us be responsible nihilists. Against this final redoubt, Strauss merely asks: Why, in the
absence of all

criteria, should one choose to

adhere

to some standard of

responsibility everything is

rather than permitted.

irresponsibility? If nothing is true, Strauss thus pushes the fact-value distinction off the
utter

indulge in

last ledge
an

on which

Weber had

attempted to

halt its descent. Noble

of

nihilism

is

oxymoron; complete nihilism

is the logical terminus

Weber's fact-value

distinction.

The The

Impossibility
nihilism

of a Value-Free Social Science

inherent in the fact-value

student of

distinction, however,

would

make

social science guish

impossible. The
good and

human

action who could not

distin

and trivial, excellent and debased would his subject, let alone writing intelligibly about it. Weber's practice was better than his theory. "His work would be not merely dull but absolutely meaningless if he did not speak almost constantly of practi cally all intellectual and moral virtues and vices in the appropriate

between

bad, important

be incapable

of

making

sense of

i.e.,

the language of praise and

blame"

language,

(NRH,

p.

51).

Spelunking
The tactic Weber
values

in the Unnatural Cave

employed to accommodate the need to recognize and

while,

at

the same

those values was called

study time, isolating his method from contamination by "reference to The social scientist may, by this
values."

method, study how

value, such as

freedom

or or

industriousness, has
change,
which

operated as

a source of cohesion or

contention, stability

within a given society.

Strauss, however,
purely
no value

points out that a social

science

conducted
while

with reference

to the values of those

being

studied,

its study itself making

judgments,
have to
accept as

would

morality, religion, art,

etc.
.

knowledge,
every

state, etc.,

whatever

claimed to

be morality, religion, art,

victim to

But this limitation

exposes one

to the

danger
one

of

falling
every

every deception every

critical
p.

and

self-deception of the people

is studying; it

penalizes

attitude; taken
55)10

by

itself it deprives

social

science of

possible value.

(NRH,

Weber's

ful

and

scholarship is only intelligible, let alone insight enlightening, because of the acuity and balance of his own value judg
own

immense

body

of

ments

lying

behind the selection, analysis,

was a

and expression of the phenomena

he

studied. not.

If Weber the theorist

nihilist, Weber the practicing scholar

was

A Legitimate Historicism

Then, in
ble

an apparent about

face, Strauss

claims there

is

a certain

kind

of

scholarship that not only benefits from value-neutrality but is only

made possi

by

an approach

that "limits

which

they

understand

itself to understanding people in the way in themselves (NRH, p. 56). This argument justifies
. .

the methodology

Strauss himself
not

employed

in his

own

historical

scholarship.

Now Strauss is simply

individual,
great

social

interested in the self-understanding of the mass groups, movements, or institutions. He has in

originators of

common
mind

the

teachers, the

doctrines,
values

the

rare

philosopher, prophet, law

giver, or theologian. In these cases, the tation

unprejudiced

proper approach

is

an

historical interpre
to

by

one's own

(which

are

likely

be the

values

of one's own

time),

an approach

that "understands a
value-

originator."11

Strauss

concedes that such

or

teaching as meant by its free, purely historical scholarship

57). One
would must presume

is

ancillary"

"merely

preparatory

(NRH,

p.

that

it is

preparatory to
understood

a mature or

final have

science

which

be

evaluative.

Having
under

the greatest thinkers, not of one age,

one would upon

but

of all

ages, as

they

stood
which

themselves,
to

achieved a of

truly

transhistorical
or
place.

vantage

from
never

pronounce

the

teaching
argue

any time

Strauss

claimed

to have

completed

this preparatory work; it is that Weber

not clear

he thought its
allowing his

completion possible.

But he did

failed to

avoid

10

Interpretation
entangled

of value-neutrality, Weber's work does historical purely scholarship that Strauss imposed on himself. Specifi late-modern Weber's prejudice which "takes it for granted that objective cally,
not attain

scholarship to become worth and its espousal level

of

in time-bound

prejudices.

Thus, for

all

its
the

value past

judgments
was

are

impossible

cannot

take very seriously that thought

of

the
are

which

based

on the assumption that objective value

all

judgments

generati

possible,

i.e., practically

thought of earlier

Value-free

science

is held

captive

by

its

own unacknowledged

value; its historicism

presupposes a

transhistorical truth.

SECOND ACCUSATION: WEBER AS PROTO-POLITICAL THEOLOGIAN

At this point, there

occurs the central transition

in Strauss's

explication of

Weber's fact-value distinction.

Having
logic
of

dense
the

analysis and pursued the of nihilism,

already Weber's

completed twenty-six pages of self-declared

methodology to
over,
and

depths

Strauss

announces that the preliminaries are

we can now proceed

to

consider what
a

actually
social

was

Weber's

central thesis.

It

has been demonstrated that

certainly did
the
was

value-free

science

is impossible; Weber

not practice such a

science,

nor even when

theorizing did he
surmise that

press

fact-value distinction to its logical

really
a not concerned about

conclusion.

We may

Weber inabil

ity

to make commonsense

the practicing social judgments to distinguish

scientist's supposed

a serious religious thinker self-denial

from

crackpot, a conscientious politician

art

from

demagogue,

from

self-seeking,

from trash,

an

important issue from

a trivial one.

The Ineradicable Conflict among Fundamental Alternatives

The fact-value distinction has

obscured the real

issue which, according to

Weber,
the

science

is helpless to decide

issue

of religion versus

irreligion, i.e.,

of genuine religion versus noble

irreli
ver

gion, as
sus the

distinguished from the issue

irreligion
issue which, according to

of mere

sorcery,

or mechanical

ritualism

of specialists without vision and voluptuaries without

heart. It is
reason, just

this

real

Weber,

cannot

be

settled

by human
rank

as the conflict

between different

genuine religions of the

highest

(e.g.,

the con
rea

flict between Deutero-Isaiah, Jesus, and Buddha) cannot be settled son. Thus, in spite of the fact that social science stands or falls

by

human

by

value

judgments,
(NRH

social science or social

pp.

philosophy

cannot settle the

decisive

value conflicts.

62-63)
science can

Social

distinguish

the great scholar

from

the academic

drone, but it

cannot prove

that the scientific

life itself is

superior to the

life

of the saint or

Spelunking
politician. and

in the Unnatural Cave

leader from the

11

Social

science can

distinguish the

religious

charlatan

the statesman

cated to either

God is
or

superior or

is better

from the functionary, but it cannot prove that the life dedi inferior to the life dedicated to the state, or that worse than the life dedicated to science. Science cannot judge
to
which men

between the tions,

views a

ultimate callings

dedicate their lives. With

choice"

such ques
world

one enters

the realm where "ultimate Weltanschauungen clash,

among

which p.

in the

end one

has to

make a

(Weber, "Politics

as

Vocation,"

1 17).
premise of

Behind Weber's Strauss finds the human existence;

nization of these crum of peace

irreconcilable

presupposition that conflict

peace

conflict among ultimate values, is the fundamental condition of

is illusory. Since

real

peace, a

real resolution or

harmo

fundamental conflicts, is impossible, the only possible simula must be the bovine somnolence of Nietzsche's last men. But
conflict
ethics"

Weber does

not

dominated
In
such a

by

stop at envisioning a world of perpetual international "warrior and governed by Machiavellian "power
the very soul,

politics."

world, the individual could still be at peace within himself. Thorough

going The patriotic duties

conflict must penetrate

dividing

each man against

himself.

of political

duties

of

religion, which command

life, which entail strife, contradict the sacred love; and faith in either God or fatherland
Weber's final teaching
cannot plumb
about

science.12

repudiates

unbelieving dicament appears to be that

experience the

the human

pre

man

the existential
without

depth,

cannot

full tragedy

of authentic

existence,

confronting the irrec

of

oncilable claims of atheism and soul

faith

on the

battleground his

his

own anguished

(NRH,

pp.

64-66). Strauss

cautions us that

Weber's "unshakable faith in

social science

conflict"

the supremacy of

suggests

that, to the

extent

actually

influences for

politics or

the ideas of politicians, its influence is

likely

to be deleteri

ous, since that faith "forced him to

as
moderate

have

at

least

as

high

a regard

for

extremism

courses"

(NRH,
authentic,

p.

67). His

social science

tends to equate the

of moderation and social science.

extreme with the

statesmanship.

thereby undermining

the virtues

This

by

itself is

a serious charge against

Weber's

Two Proofs

Strauss

next considers some of

Weber's

attempts

to

prove

the irreconcilabil

ity

of ultimate values.
provides.

Weber
says

In

uncertain, however, just how many proofs footnote, he says there are three or four; in the text, he
seems or three of

He

he

will

discuss two

these

(NRH,

p.

67

and n.

27). In the follow

ing pages, be clearly enumerates two proofs. Does he discuss a third and perhaps even a fourth without calling attention to them as such? I will argue that, after
discussing
consider

and

a third and

refuting the two clearly enumerated proofs, Strauss goes on to fourth which he shows to be inconclusive but which he
refute.

cannot

definitively

It may be the profoundly

disturbing

implications

of

12
his

Interpretation

inability

to refute

disguise

their

Weber's true, underlying arguments that cause Strauss to significance in such a way that casual readers will overlook them.
proofs need not

The first two

long delay

us.

In the first, Weber

sets out pairs

of opposed views about various moral

questions,

such as whether

it

would

be has
no

just for society to shower rewards or impose demands on an individual distinguished himself by his superiority in some activity. Weber implies that
who objective

criteria

exist

for

determining

which

response

would

be truly just.

Strauss simply
or where whatever most

points out

the choice

that, in any case where a just solution remains unclear lies between morally indifferent alternatives, society can do

makes

it

common

expediently serves the public interest. Weber's notion of justice purely individual matter, cutting it off from any consideration of the good of society (NRH, pp. 67-69).
second

In his

proof, Weber contrasts the ethics of responsibility, which

is

concerned with practical consequences,

cerned with

to the ethics of

intention,

which

is

con

the realization of a preconceived ideal.

By

this opposition, Weber

purports to show that moral commitment requires us to override considerations of social responsibility, while social eye to moral

ideals. Strauss

argues that

responsibility demands that we turn a blind this contrast betrays a fundamental con

fusion
reason

on

the part of
what

Weber,

a confusion

between

what can

be known

by

human Weber human

on

and

can

only be believed. Strauss

with

dryly

comments that

"merely

proved that

otherworldly ethics, human

or rather a certain

type of otherworldly

ethics, is incompatible

those standards of
mind

human

excellence or of

dignity

which

the unassisted

discerns."

Moral injunctions based

are

revealed
problem

knowledge for

or some suprarational

social science which

is,

after

ideology very far from posing a all, concerned strictly with "human
after all,

knowledge
Strauss
can

of

human

life,"

and whose

light is,

even goes so

far

as

to state that, "if genuine

of

only the natural light. insights of social science is

not

be

questioned on the

basis

revelation,

revelation

merely

above

reason

but

reason"

against

(NRH,

pp.

69-7

1).13

Third Proof: Historicism The fact that Strauss

tion that

or

Fate

could so

easily

refute the

first two

proofs

is

an

indica

they

were

merely the expressions or symptoms of a

deeper
The

problem

that made Weber

whether

despair

of the

adequacy

of

human

reason.

question

human

reason can

judge

of good and

bad

actions was not the core or

core lies in his apprehension that "science or is unable to give a clear or certain account of its own philosophy (NRH, p. 72). Is the life devoted to "the search for knowable good? Is it worth while and choiceworthy? Or is it rather a curse? Does it turn its practitioners
origin of
basis"
truth"

Weber's doubt. The

from higher

ends and make

them the

destroyers
of

of

human happiness through

the rationalization and

disenchantment

the world?

"By

regarding the

quest

Spelunking
for truth
no as valuable

in the Unnatural Cave

is making

13

in itself,

one admits that one

reason"

a preference which one sees a modern

longer has

a good or sufficient

(p. 72). In

Weber,

rationalism

that has lost confidence in itself.

extent

Even to the from delusion

man,

that Weber

did, by his
about

own

example, assert that science

can

can provide reliable

knowledge
the

and establish

foundation for

human things, a free

free human beings

life for

and self-reliant

he
or

still

denied that

we can affirm

that the life devoted to science is simply

best

that the truth it

to say that science or

all
men

discovers is universally valid. Specifically, "he refused philosophy is concerned with the truth which is valid for

regardless of whether speculates that

they desire
influence

to
of

know it

not"

or

(NRH,

p.

73).

Strauss

it

was the

historicism that
its intrinsic

prevented

Weber

from claiming for

science

the authority

of universal

truth. Weber suspects that

claim

the modern elevation of scientific

knowledge

and

to universal

ity

are, in

fact, only

the products of a unique, arbitrary conjunction of historical

to

forces. "What

claims

be freedom from delusions is

in the
fate.14

as

much and as

little
in the in

delusion
future"

as the

faiths

which prevailed

past and which

may

prevail

(p. 73). History, in this view, is

to the
strict

If Weber

remained steadfast

his

allegiance

discipline

of

science, if he acknowledged only

reason

as the proper means

for

discovering
was

truth and spurned the claims of

intellect,"

faith, if he

"refused to
where or

bring

the sacrifice of the

it

can

he

was

born,

how he

educated,
pp.

who

he

was

only be due to when and who, in short, history

fate determined him to be (NRH,

73-74).

Fourth Proof: Science

as a

Vocation

No

sooner

does Strauss

complete

his compelling
we

case

for

labeling

Weber

an

historicist than he introduces

a reservation which reveals

that account, too, to

have been only provisional and superficial; bottom. Weber was not an historicist.
What then lies
ciency,
even

have

not yet quite reached the

at the

bottom

of

Weber's

anguished

doubts

about

the suffi

the goodness, of science as a vocation?

cannot

Strauss

states the

fundamental
If

problem as

follows: "Man

live

without

light,
good

guidance, that he

knowledge; only
one starts will

through knowledge of the

good can

he find the

needs."

from this concern, it is inevitable that the "fundamental "whether

men can acquire that

question"

be

knowledge
or

of the good without which

they

can

not guide their

natural

Revelation"

collectively by the unaided efforts of their powers, or whether they are dependent for that knowledge on Divine (NRH, p. 74). Furthermore, having raised the question of human or

lives

individually

divine guidance,

reason or

revelation, philosophy or the

Bible, Athens
obedient

or

Jerusa
evaded

lem, Strauss
the

concurs with

Weber's

conclusion:

the choice can neither

be

nor settled conclusively.

The

claims of

the life dedicated to

faith

and

life dedicated to free investigation

contradict one

another;

neither side can

14

Interpretation
refute

ultimately

the other; and the two cannot be harmonized.

In

other

words,

having

reached

the core of Weber's

with

doubts

about science or philosophy, we

find

Strauss agreeing This startling

him!

convergence

between

the critic and

his subject, however, is

followed
If

by

very

peculiar paragraph.

we take a
we can

bird's-eye

view of the secular struggle

between philosophy

and

the

ology,

hardly

avoid

the impression that

neither of

the two antagonists

has

ever succeeded seem

to be

valid

in really refuting the other. All arguments in favor of revelation only if belief in revelation is presupposed; and all arguments
to be valid only if
natural. unbelief

against revelation seem

is

presupposed.

This

state of

things would

appear

to be but

Revelation is

always so uncertain to unas

sisted reason that

it

can never compel the assent of unassisted reason, and man

is

so

built
the

that

he

can

riddle of

find his satisfaction, his bliss, in free investigation, in articulating being. But, on the other hand, he yearns so much for a solution of that
always so

riddle

and

human knowledge is be denied

and the

limited that the

need

for divine illumina

refuted.

tion cannot

this state of things that seems to

of revelation. revelation

possibility decide irrevocably

of revelation cannot

be

Now it is in favor

against

Philosophy
To

has to

grant that revelation

is

possible.

philosophy But to

and

grant that

is

possible means to grant that grant that revelation

philosophy is

perhaps

something

infinitely

unimportant.

is

possible means

to grant that the philosophic the

life is

not

necessarily, not evidently, the right life.

Philosophy,

life devoted to
rest on an of
un-

the quest

for

evident

knowledge

available to man as man, would would

itself

evident, arbitrary, or

blind decision. This

The

merely

confirm the

thesis

faith,

that there is no possibility of consistency, of a consistent and

thoroughly

sincere

life,

without

belief in

revelation.

mere

fact that philosophy

and revelation can

not refute each other would constitute the refutation of

philosophy

by

revelation.

(NRH,

p.

75).

On its surface, this

paragraph carries the agreement

position.

further, seeming
of

to move

Strauss

closer

to

Weber's

The very

irresolvability

the

dispute be

tween reason and revelation would seem

tion, for
to

even with

begin

actually to decide in favor of revela the decision to pursue a life of skeptical rationality would have a leap of faith. It would seem that all one has to do is prove that

revelation reason

is

possible

(i.e.,

that reason cannot

finally

refute

it) in

order to

force
the

to concede to revelation the ultimate victory. If the

justification for
of obedient

philosophical

life is

not

demonstrable,

then

it, like
it

the

life

belief,

must rest upon a

blind decision. This

realization

lies
also

at

the
at

heart

of

Weber's

tortured dedication to the vocation of science;

modern crisis of rationality.

lies

the center of the

But let
The

us

look

more

closely

subjunctive mood or contains some other paragraph

begins

with

be the case; the auxiliary a "not

"would"

necessarily," evidently,"

Almost every sentence is in device to qualify its apparent "If; three times something is said to to appears four times; two "perhaps," a "not and the phrase "we can hardly avoid the impresat
"seem"

this paragraph.

sense.16

Spelunking
that"

in the Unnatural Cave

15

sion

round out the number of qualifiers.

core of

In short, this

paragraph sets out position

the

innermost

Weber's dilemma

and

demonstrates that it is the

if he had begun his thinking from the point at which Weber began. Thus, Strauss concedes that, given Weber's starting place, the life dedicated to rational inquiry must ultimately be based,
would

Strauss too

be

compelled to embrace

like dedication to any other god, on an act of faith. What Strauss specifically does not say is that he accepts Weber's starting place, namely his assumption that men must have knowledge of the good if they are to have any basis upon
which to guide

their lives.

THE LAST SCIENTIST IN THE WHOLE WORLD

Strauss
in two

concludes

his

analysis

by

capturing the

essence of

Weber's dilemma

sentences:

It

was the conflict

between

revelation and

the term and the

of science or

implications

of that conflict

philosophy or science in the full sense of that led Weber to assert that the idea
weakness.

philosophy
which

suffers

from

fatal

He tried to

remain

faithful
sacrifice

to the cause of autonomous

of the

insight, but he despaired

when

he felt that the

intellect,

is

abhorred
pp.

by

science or

philosophy, is at the bottom of sci

ence or philosophy.

(NRH,

75-77)17

As

judgment
sober

of

Max Weber, this

even
part

conclusion also

is

ambiguous.

It betrays

Strauss's
the

respect,

admiration, but
through

his unblinking
would reason and

awareness of

fatal

error which,

in

Weber's influence, human

moral

rapidly infect
of

the modern perception of the capacity of the

the estimation of

life dedicated to it. There is

who

also

Weber's

superiority to many
of

his

successors
refute

have

retained

his

assumption

that social science can neither

the claims of revelation nor

satisfy the demands

and yet

who,

unlike

Weber,

seem either unaware or not

humanity deeply
been

for

guidance

troubled

by

the

implications
of the

of these

failures. More specifically, Strauss

and value as

respected

Weber's

doctrine

distinction between fact

having

a noble effort

to insulate science
value

from

distinction

as a

Weber may be said to have erected the factbulwark to protect his scientific investigation into causal
politics.

relationships

from infection

by

any

of the

ideologies,

such as

nationalism, so
circles.

cialism, and communism, then rampant in German intellectual

this philosophically defective
open

Behind
mind

barrier, he clearly
reality,
and

succeeded

in

keeping

his

to the

experience of political value.

work

its

lasting having

Weber

remained a master
we

it is this quality that gives his in magnificent command of

admire, Weber's
method

his

empirical materials.

Thus,

may excuse,

even

ology for
disguised

provided

him "a

means of critique against what

ideological

politics of

as science, a means of

combating

Benda

called

'the betrayal

16
the

Interpretation
intellectuals' "

(Eden,

"Why

Wasn't Weber
admired

Nihilist?"

with quotation

from

NRH,

p.

34). Strauss

cannot

but have

Weber's

lifelong

dedication to

the attempt to

preserve

the possibility of rigorous science against the imperious theological and

political.

demands
concurred scientist

of

dogma, both
beliefs

Strauss

cannot

but have

only studying human things. Both

of

that

should

constitute

the object of investigation

by

the

would abhor as a

monstrosity the

teacher-

advocate or

the philosopher-believer. I would guess that Strauss undertook the the philosophical framework of Weber's

demolition

life

work as a painful

task that must be carried out in order to

force

us moderns to recognize our need

modern one upon which

to

recover a

and

fortify
of

basis entirely different from the the life dedicated to reason.

admiration

to

justify

Part
about

Strauss's

Nietzsche's

moral

influence

for Weber is surely due to Weber's misgiving on politics. Nietzsche's teaching relegates the
to a plane vastly inferior to the the believer's pursuit of a supernatural good.
to

cultivation of

mundane, limited

political virtues

philosopher's quest

for truth

and

Having

reduced philosophical ethics never

history

and announced the

death

of

God,

Nietzsche

seriously
the

considered a return to classical political philosophy's

teaching
Weber

about

assume the task of preserved a

the absence of any ground, man must his own values. At least in his scholarly practice, creating place for political virtue, even though his philosophical as
virtues.

Instead, in

sumptions contradicted the claims of such virtues.

Indeed,
have

one might even

say

that it is a mark of Weber's stubborn nobility to

accepted the core of

Nietzsche's teaching
chased at the cost of

while

holding

out

for the

claims of moral virtue and the

was pur

politics.19

practical exigencies of

If this is true, then Weber's nobility

the

incoherence.
of

If Weber is

half-student

Nietzsche, he is

half-innocent
Hitler.20

precursor of

Heidegger,
the
revelation

and

from there

we pass under

the shadow of

By denying
life to

adequacy

of

human reason, Weber

surrendered the governance of

and contributed and revelation.

to the destruction of the age-old tension between

philosophy
salem and

Athens is

Heidegger, finally demolished,

the

In

the

fundamental tension between Jeru

Heidegger
pillories
of man's

or rather resolved.

theory

without commitment as

destroyer

humanity.

Theory has

culminated

in the

worldwide

victory

of

technology

and the end of philos

The task of thinking at the end of ophy philosophy is to develop the depths in our Western thought ultimately derivative from the Bible, the East in us, but freed from those dogmatic underpinnings that might prevent them from plane
tary.21

becoming

Strauss was, I believe,

modern rationalism.

persuaded

by Nietzsche's

and

Heidegger's

critique of

In his estimation, they had

proved that the modern ground

ing for

the

life

of reason and the expectation

that life should look to reason for

not, on this account,

guidance

is

fatally

flawed. Yet, like

Weber, Strauss did

Spelunking
give an

in the Unnatural Cave

17

up allegiance to reason. Unlike Weber, however, Strauss did not resort to irrational commitment to rationality. Instead, he undertook to discover or

recover a

truly

adequate, alternative, nonmodern basis for the

relation

between
to

reason and politics.

It may not be entirely misleading to compare "Politics as Xenophon's Hiero. Both can be read as attempts to instruct and
whom passion

Vocation"

a moderate

those

has driven to
a

aspire to political power

regime.22

in

what must as

inevitably
question

be

imperfect, dialogue, a constant

an private

less than just,

In Weber's lecture,
of the

in Xenophon's

theme running below the surface of the text is the

concerning the choiceworthiness of the

life

ruler, the political man, versus

could almost

life,

the

life

of the

thoughtful

man.

Weber

be

another

Si

monides,
about

judiciously enticing tyrants and would-be tyrants to listen to his advice politics by speaking only of interest and power, while remaining silent

Both adroitly position themselves to be able to use their wisdom for the greatest benefit of the city by instructing and moderating rulers who
about morality.

willingly listen to them. We imagine, however, that Simonides, behind his pru dent reticence, really does possess an ethical teaching; Weber has none (On Tyranny, pp. 55-56).

Weber
potent.

represents the
never

impotence
a

of

wisdom, or

rather a wisdom

become im

He

becomes is

sophist; he

never prostitutes wisdom

privilege.

But he has

rejected or

forgotten

the classical

for money or connection between the

philosopher who with courage and

concerned with

truth and the gentleman who is concerned

saw no reason

justice. Either Weber

to uphold the standards

of

the gentleman, or else he felt constrained

not to

by

his
and

own notion of scientific

objectivity
them to
plative

do

so.

That is, in his writing

teaching, he declined to

provide arguments to moderate the passions of

acknowledge

the nonphilosophers and induce

the nobility and usefulness of the philosophic or contem

life. Weber
art
of

called the

defenseless,
kedness has
merely
ant

and

was utterly deficient in what the Arab political philosophers kalam. This deficiency leaves modern philosophy exposed, unedifying (On Tyranny, p. 42). Even worse, philosophy's na

permitted

the growth of the vulgar opinion that wisdom itself is

another contender

for tyrannical power, lover

since

no argument that might contest the popular view

that

philosophy has left intact tyranny is the most pleas

tyranny,

life. The late

modern

of

freedom is left to draw the

against rationalized

conclusion

that, to

preserve

freedom

demoralizing humanity
or rather a

must reject the

possibility
problem

of wisdom.

To repeat, the
scientist who

is the starting

point.

Weber is

moralist,

believes
himself

moral concerns are of paramount

importance for human

to
which

life. He

sees

confronted

by

moral and political questions

he,

as a scientist,

feels

called upon

to

provide reliable answers.

From this

point of

view, the value of science and the adequacy of reason

reason's

itself

stand or

fall

by

ability to

answer

the pressing moral and political questions.

In effect,

the

scientist or philosopher

does

not

simply

appear to submit

to the judgment

18

Interpretation homines
politici

of the

et religiosi;

he

submits

in his

own

conscience.

This

means that
unable

if, from

the

point of view of moral and political

life,

science proves

to

provide

guidance, wisdom,

knowledge

of

the true end, then the scien

tist or

philosopher cannot

justify

the scientific or contemplative life even to

from this starting place, what first comes into sight is the unavailability of any certain knowledge of natural right. Philosophy cannot provide the framework for praxis. Furthermore, having begun
himself.

Coming

at the

question of science

from the
phy

need

for

moral guidance,

the rejection of natural right

brings

philoso

as a whole

into doubt

and

disrepute. It
and natural

was this reversal of the classical

relationship between philosophy

utation of natural

right,

followed

by

the apparent ref

right, that precipitated the modern crisis of philosophy or

rationalism.25

While Weber himself steadfastly

refused

to surrender to the
nonetheless

irrational,

re

fused to

bring

the sacrifice of the

reason

intellect, he
can

conspired

in the human

surrender of

human

to the irrational. Behind this surrender lies the secret

belief that
decided
year

reason

by

its

own

light

know nothing

of

the most

vital

questions, can

by

know nothing of the good. All questions of value can only be blind faith. Weber, in a sense the last scientist in the three-hundred-

tradition of modern science, is not an apostle of the

Enlightenment; he is
of a

one of

its

pallbearers.

Having

attempted
about

to illuminate all the caverns of human

existence, Enlightenment brought

ural cave.

the

deeper darkness

second,

unnat

This story has the form of a Greek tragedy recounting the inevitable punishment of hubris: only by reaching too high has reason fallen so low. It
was modern philosophy's exaggerated promises of

comprehensive,

rational con

trol of nature

that,

theologians who have

being demolished, despaired of finding

converted

its descendants into unbelieving the least precept of natural right.

THE RETURN TO THE SURFACE

Having
ber's

penetrated to the

furthest depth, the true, hidden

makes one of the most us

origin of

Max We

social

science, Strauss
writing:

startling transitions to be
awful

found in scholarly
a

"But let

hasten back from these

promises at

depths to
sleep."

superficiality which, He then begins the next

surface again
. . .

while not

exactly gay,

least

a quiet

sentence with
76).26

the phrase,

"Having

come

up to the

(NRH,

p.

Why

"again"? When

were we at the surface?

What

was the surface

from

which we set out on our

journey

to the center of the

of

fact-value distinction? If
Weber
were not about

you

remember, the first two pages

the chapter on

Weber but Socrates. To

will

understand this transition and

a

the contrast it is making, it

a

be

useful to

introduce

lengthy

quotation

from

later

chapter of

Natural Right
have

and

History:
he brought
about as a return

Socrates
to
'sobriety'

seems to
and

regarded the change which

'moderation'

from the

'madness'

of

his

predecessors.

In

contradis-

Spelunking
ent-day
sense'

in the Unnatural Cave

moderation.

19

tinction to his predecessors, he did not separate wisdom from

parlance one can

In

pres

describe the

change

in

question as a return to 'common

which the question
'idea'

or

to 'the world of common

eidos of a

sense.'

That to

'What

is?'

points

is the

thing, the

shape or

form

or character or which

of a thing.

It

is

no accident that the term eidos signifies

primarily that

is

visible

to all

with

out

any

particular effort or what one might call the

'surface'

of the things.

Socrates

started not

from

what

is first in itself

or

first

by

nature

but from

what

is first for us, things, their

them or

from
in

what comes to sight

first, from
in

the phenomena.

But the

being
is

of

What,

comes to sight, not

what we see of

them, but in
started

what

said about

opinions about them.

Accordingly, Socrates

tures of things from the opinions about their

some

natures.

in his understanding of the na For every opinion is based on

awareness,

on some perception with the mind's eye, of something.

Socrates
impor

implied that

disregarding
most

the opinions about the natures of things would amount to

access to

abandoning the
doubt'

important

reality

which we

have,

or the most

tant vestiges of the truth which are

of all opinions would

within our reach.

He implied that 'the

of the

universal a void.

lead us,

not

into the heart

truth, but into

Philosophy
truth, in

consists, therefore, in the ascent from opinions to knowledge or to the that may be said to be guided
started

an ascent

by

opinions.

(NRH,
of

pp.

123-24)
from the

Note particularly that Socrates phenomena, from the form or from things
radical as

from the "surface

things,"

character

things take in people's opinions, not

an approach which would require

they truly

are

in themselves,

doubt

opinions.27

of all

Secondly,

note

that it is from this

or

surface
truth."

that

philosophy begins its "ascent from against Weber's depths we have

the last glimmer of truth
we

opinions to

knowledge
knowledge

to the

Thus,

Socrates'

surface, against the descent beyond

and

have the

ascent to
made

truth,

against the

dark

void

into

which one at

falls

by having

too direct an assault on the heart

whose

of truth we

have

least the

promise of a sun

in

light beyond the

shadows

of the cave we

a severe intellectual austerity him with ascetic renunciation from any tendency scientist, constraining toward intellectual hubris. In fact, it takes for granted that a claim of immense upon the magnitude and palpable

may at last see truth. The fact-value dichotomy appeared to impose

uncertainty has been

definitively
to

answered:

namely,

that all the opinions about the good and the bad are simply empty of truth.

This final

is

not philosophic

skepticism; this is

a radical claim

have

reached

the

truth about things. This

is

declaration that
perceptions,

we must not

simply

climb out of

the cave of

our pretheoretical

but that

we must close our eyes

place.

to

the cave and attempt mentally to construct some other

philosophy
ration of

never

lets

one

forget that science,

emerges

or at

starting least the philosophical

remembers

Classical
explo

the

human things,

from opinion; it
that,
above all

its feet

of clay.

As
we

a result, we are always reminded

else, what we know is that

a

do

not

know. Modern

science attempted

to establish

foundation in
not

abso

lutely
not

indubitable

propositions.

In the event, it discovered that,

only did it

have feet

of clay,

it had

no

feet

at all.

Its hypotheses

hung

suspended over

an abyss.

20

Interpretation
Is Strauss's
strange

jest his dismissal, his quittance, dead

end reached

of

Weber's

tragic

depths?

Do

those

depths

mark the

by

the entire

movement of modern

thought

after

exponent of

its wrong turn in the seventeenth century? Was the universal doubt of opinions? Did not Bacon
advocate as

not

Descartes the

and

Hobbes (and

Machiavelli before them)

the proper starting point for gaining ac

cess to reality, not the contemplative acceptance of the appearance of

things,

but

the invasive analysis, rigorous conceptualization, and aggressive control of

nature?

Max Weber was, in

a turn that

sense, the last scientist in

long

line

of scientists stance

who

had taken
in

led to the destruction

of science.

Weber's tragic
and

has been treated

recreated

with utmost respect

pages

few dense

the

by honesty

one whose

intellect

sympathy have
collapse of

and anguish of a philosophic man

witnessing the
science or

self-destruction of mankind's

highest creation, the

possibility
of a

philosophy

and the collapse of the

life devoted to
own

science or philosophy, a vocation

which

to

which

he had dedicated his had dedicated

life

and

to

the brightest minds since Machiavelli

after

theirs.

And yet,

after

the

debacle,
walks

the
on

ophy

back

death in the last act, when the curtain falls and true philos stage, having been lost to sight since the first pages of the
possible to

drama, it becomes suddenly

comic wink.

dismiss Weber's tragic

pose

with

How then

are we

to begin to recover

what we

have lost? Strauss looks

ahead

along the path we must travel: "Only a comprehensive analysis of social reality as we know it in actual life, and as men always have known it since there have been
an

civil

societies, would
social

permit an adequate

discussion

of

the possibility of

science."

evaluating

Note

well that

Strauss does

not claim such a social

science would
nor

finally
it

settle

the conflicting claims made

by

different regimes,

does he

claim

would resolve the

fundamental

alternatives posed

by

reason

and revelation.

Such

a social science would not constitute possession of

the

final

knowledge
judgment

of natural whether

right; it

would

on

the conflict

merely "supply a basis for responsible between these alternatives is, in principle,
78). Strauss's prescription, then, is to
with

solution"

susceptible of a

(NRH,
that

p.

start

to recover the

horizon

became lost

the

dominance

of modern science.

That horizon is the natural, prescientific,

the surface of
articulated

pretheoretical world, what we called

as

by

things, the phenomena simply human beings.

warns us that we

they

appear and come

to be

if we take his advice too literally horizon simply by looking around us at the world in which we live today. This world, our modern world, has been transformed and distorted by three centuries of modern science. Our the
ourselves
and attempt to rediscover

Yet Strauss

fool

this natural

eyes,

way

we

have been taught to seeing the

see

things from the time

we

learned speech,
putting
on

cannot

adjust to

pretheoretical

reality
and

as

easily

as

corrective

lenses. An extensive,

intellectually
of

morally
of

demanding

process of unlearn

ing
say,

must precede

any recovery

the view

the world that was natural

before,

1513,

the year

Machiavelli

wrote

The Prince. "To say nothing

of technol-

Spelunking
ogy, the
which,
world

in the Unnatural Cave

21

in

which we

but for the

existence

live is free from ghosts, witches, and so on, with of science, it would abound. To grasp the natural
philosophy"

world as a world

that is radically prescientific or prephilosophic, one has to go

emergence of science or

back behind the first

statement,

(NRH,
it has

p.

79). In this

Strauss

acknowledges

the

Enlightenment's benefits to
to what
of

humanity
Modern
if these

while, at the same time,

drawing
a

our attention

cost.
what

science exorcised the ghosts

from the machinery

the

world.

But

ghosts, these opinions,

necessary part of containing the "soiled fragments of the pure can ascend toward knowledge of the whole? These
Weber's
postscientific

were

our

natural

understanding
alone we

truth,"

from

which

ghosts and witches are not

gods and

demons to

which

science,

having

lost it

confi

dence in itself, feels

seem

compelled to genuflect. populated men's

They

are

the prescientific gods who

was

naturally to have

beliefs

about the world; and

in

this naturally god-infested

world governed

by

divine laws that

classical political
gods'

philosophy learned to live, bowing respectfully in acknowledgment of the irreplaceable sovereignty over the city, but without conceiving that the claims
of

the city could ever

bring

the philosophers to renounce the

compelled to

preeminence of

contemplation nor,

in the end, feel

bring
at

the sacrifice of the intel

lect.

Before
quoted

leaving Weber,
which

let its

us

look

once

more

the peculiar paragraph,

conclusion

above, in

Strauss

appears

to accept Weber's

that the
para

life

of science cannot

justify

own choiceworthiness.
we

Strauss begins the

view

graph with an enigmatic

image: "If
and

take a

bird's-eye

of

the secular

struggle

between philosophy
p.

theology,

we can

hardly

avoid

the impression

that neither of the two antagonists

other"

has

ever succeeded

(NRH,
his

75). We have already

shown

in really refuting the that Strauss admits indeed, it is

that neither philosophy nor

one of

most

forcefully

articulated teachings

revelation ever can refute

the

other.

Yet this

sentence

introduces
answer.

a paragraph

ostensibly the image

denying
of

the very possibility of the

view."

Socratic
the

The

key

lies in

the "birds-eye

To

understand

Plato's image
with

of the cave as a metaphor

for the

city.

image, first call to mind Then imagine a landscape

the entrances to a number of such caves scattered across it.

above

Finally, imagine
caves.

bird soaring
view

this

landscape, looking
modern

down

on the

many

This is

the

adopted

by

early

philosophy toward the

natural

world, the

world as

it

appeared and was articulated

by

political, moral men. Modern philos

ophy
the
as

or science aspires to a point of view

various

caves, a view which,

looking

entirely above the opinions held in down on the caves, sees their opinions

only

so much

delusion,

superstition, and ignorance.

unfortunate effect of

This aspiration,

as we

have already
sume

shown, has the

making philosophy itself

world,

as

direct responsibility for the

itself the
sole

enlightened governance of the

wisdom.

since

it

has
ble

proclaimed collapse of

true source of

It

was

the eventual,

inevita

this project that led to the crisis of confidence among philoso

phers themselves.

The bird's-eye

view

is

fatal.28

22

Interpretation
Until
all men

become philosophers, the true

science attainable

by

the

few

and

the highest way of

or

Science
part

life attainable by the many must remain entirely distinct. a purely theoretical art; morality and politics have no is philosophy in it. Nor can philosophy, as such, concern itself with morality and politics.
of

That leaves the best way

art, the
art of

life to be

supplied

by

a nontheoretical or practical

lawgiving
life,

or statesmanship.

The

point of view that

holds these

two aspects of

the theoretical and the practical, in a tense and necessary

either

relationship while, at the same time, preventing other, is political philosophy. The shocking
a veil of aspect of

from collapsing into the

Platonic

political

philosophy, the aspect requiring that

reassuring

rhetoric

be

pulled over

it, is its denial

not a

self-subsistent status ples

for

morality.
which

Man does
give

any independent or have access to any first princi

of
moral

of practical

reason

would

truly

basis for

morality. supplied

"[T]he first

principles of action and

therefore also of politics [must

be]

by

theoretical reason or natural the end of man

is."

science:

it is

natural science which makes clear

what

The

end of man as man

is "the

perfection of

his

mind."

The function

of practical reason will

given circumstances one can a man of speculation.

be deliberation concerning how in any best conduct one's life so as to become perfect as
will continue

Virtue

to

be

an

important

concern

for the
and

philosopher, both for the ordering of his own life toward contemplation
the

for

ordering

of society. and

"But

...

if these

virtues are understood

only

as subservi

ent to of the

philosophy

for its sake, then that is

paraphrases a passage

no

longer

a moral

understanding

virtues."

Strauss
the

from Nietzsche's

Genealogy

of

Morals to

make

tal asceticism of
win a race must

Platonic teaching clear: Nietzsche compared the instrumen the philosopher to "the asceticism of a jockey, who in order to
unimportant to the
race."29

jockey,

what

live very restrainedly, but that is wholly is important is to win the

The feature that identifies this teaching as the uniquely Platonic political or philosophy is that, in the most perfect case conceivable, the lawgiver or

king

prophet who possesses the political art

pher.

in the highest degree is

also a philoso

Thus,

the

that the

highest be

laws providing the best way of life flow from a mind that knows end of human nature lies in the quest for knowledge. Political

philosophy
answer can

provides the

articulated and

absolutely lived

essential context within which the

out.30

Socratic

The distinction between the theoretical

most quest

art and

the practical art can perhaps

instructively
for the truth

be

understood as

the

distinction between
(as

"philosophy

(as

about the

whole)
Plato,"

and self-knowledge

realization of the

need of that truth as well as of the

communication)"

("Farabi's

difficulties obstructing its discovery and p. 400). When the philosopher turns from
or of

contemplating the whatness of all beings to consider the world of opinions beliefs in which human beings actually live, he realizes (if he is a pupil

Socrates)
his

that he can only know that world

own soul.

His

own soul-knowledge

by observing becomes the finely

what

is going

on

in

tuned

instrument by

Spelunking
means of which ascends
art

in the Unnatural Cave

23

his understanding begins, as it were, from the cave floor and toward the purest light. Self-knowledge is the origin of the dialectical
the philosophical
of

by

which

investigation This turn

or of

questioning

of opinion reaches

toward

knowledge

the

whole.

things proved

Socrates

the greatest psychologist

truth,"

philosophy toward the human in antiquity; it was he "who

examined souls ward

from the

perspective of
own

that

is, from

the orientation to

truth

which

he discovered in his

soul.31

NOTES

1. (Chicago: The

University

of

2. See Leo Strauss, Persecution and the Art of Press, 1988, first published 1952), p. 139. 3. Leo Strauss, "A Essays
of
and

Chicago Press, 1953), hereafter NRH. Writing (Chicago: The in Jewish

ed.

University

of

Chicago

Giving

of

Accounts,"

Lectures in Modern Jewish

Thought,"

Philosophy and the Crisis of Modernity: Kenneth Hart Green (Albany: State University

New York Press, 1997), p. 465. 4. Cf. Leo Strauss, "Progress or

Return?"

in The Rebirth of Classical Political Rationalism: An

Introduction to the Thought of Leo Strauss, ed. Thomas L. Pangle (Chicago: The University of Chicago Press, 1989), pp. 269-70. Strauss makes it clear that it is modem philosophy or science
that

is

vulnerable

to this reduction to an act of faith. This leaves unstated the possibility that there
or science
and

was an older chapter of

philosophy Natural Right

that escaped this

makes

History

tion to faith. I believe that it is in silent

1 think the opening of the second Socratic philosophy does avoid the reduc contradistinction to the particular, Socratic approach to
reduction.

it

clear that

philosophizing that Strauss prefaced the passage just quoted with an enigmatic sentence: "And here when I use the term philosophy, I use it in the common and vague sense of the term where it includes any rational orientation in the world, including science and what-have-you, common It is the common or vague approach to philosophizing, the approach that does not begin with the Socratic answer, that tends to reduce philosophy to an arbitrary choice, the equivalent of
sense."

faith. 5. "Strauss's
all quest

takes the form of a continuous descent in

which we are compelled

to

abandon

hope

as we spiral

down in
of

pursuit of the
moral

basic

problem of the social sciences or the

most

Robert Eden, "Why Wasn't Weber a Nihil ist?" in The Crisis of Liberal Democracy: A Straussian Perspective, ed. Kenneth L. Deutsch and Walter Soffer (Albany: State University of New York Press, 1987), p. 224. Eden's excellent essay fundamental disclosure
Weber's
traces this descent to its penultimate step but fails to
one
notice

preferences."

that

Strauss takes the

man's need

argument

down

further

crucial step. of which

The bottom is

not

historicism

or

fate; it is

for

moral guidance

in the face

Weber

could offer no solution.

Vocation,"

ed.

in From Max Weber: Essays in Sociology, trans, 6. Max Weber, "Science as a H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), p. 142.
7. "How
one

and

becomes

is"

what one

is the

subtitle of

Nietzsche's

autobiographical

trans. R. J. Hollingdale (London: Penguin

Books, 1979). Nietzsche

I Am So
Clever,"

answers the question

one

Ecce Homo, how one

what one

becomes

what one

is in the

chapter

"Why

sec.

9. "That

becomes
of

is

presupposes that one

does

not

have the least idea

the

is."

what one

The danger

oneself too succeeds what

other which

early is that it

would preempt

gradual process of

the revaluation of all

affirm

understanding values. If one

is.

becoming what one is, one will have gone beyond all ideals to "My formula for greatness in a human being is amor fati: that
in it is,
not

in

perfect

freedom

one wants

nothing to be

than

in the future,
"

not

in the past,

not

in
all

all eternity.

happens

of necessity, still
.
.

less to dissemble it

idealism is

untruthfulness

Not merely to endure that in the face of in

but to love it necessity 8. For Weber, "the gods

(sec. 10).
values"

of the various orders and

are engaged

continuous struggle.

24
One

Interpretation
can never

finally

one another,

now and

for

decide among their conflicting claims because "different gods struggle with p. 148; see pp. 147-49. "Science as a all times to
come."

Vocation,"

9. One

of the

three decisive
sense
...

qualities of

the politician, along with responsibility and proportion,

'cause,'

is "passion in the

of passionate

devotion to

to the god or demon who

is its

overlord."

in From Max Weber, p. 115. Max Weber, "Politics as a 10. Cf. Strauss's summary of Georg Lukaks's critique of Max Weber's
"Weber more than any other German scholar of his
generation tried

Vocation,"

conception

of social

science:

to save the objectivity

'value-free'

of social science;

he believed that to do

so required that social science

be

made

because
and

he

assumed

that evaluations are transrational or

irrational; but

'facts'

the value-free study of

their causes admittedly presupposes the selection of relevant

guided

facts;

that selection

is necessarily concep

by

reference

to values; the values

with reference

to which the facts are to be selected must

themselves be selected; and that selection, which determines in the last analysis the specific
tual

framework
or

of the social scientist,

is in

principle

arbitrary; hence social science

is

fundamentally

irrational

subjectivistic."

11. Leo
p.

Strauss, Liberalism
same maxim

250. This

The Rebirth of Classical Political Rationalism, p. 19. Ancient and Modern (Ithaca, NY: Cornell University Press, 1989), is rephrased in NRH, p. 57.
contrast of the ethic of ultimate ends versus the ethic of responsibility. on a

12. Consider Weber's The

politician must make

decisions based

judgment
on

about the consequences

unconditional

they

will

have for

the nation. The pious must make

quences.

decisions based

duties

regardless of conse

Thus,

the ethic of ultimate ends (enjoined

by

religion) is

not reconcilable with pp.

the ethic of

responsibility required by politics. Weber, "Politics as a 26. This passage would appear to put Weber's references to
our

Vocation,"

122, 126,
our

and see pp. 117a new

man's gods and

demons in

light:
our

demons

consist

in

our attraction to the exercise of political power;

gods consist

in

religious

impulses. This formula

religion and

offers no grounds
violence.

for

a reconciliation or even

a modus vivendi

between
religious seem

politics, love and

Indeed, it implies

that

any

attempt

insight in

political

reality

must end

by

subverting both

politics and religion.

to embody Weber would

to

allow no place

for

prudence.
intention"

13. Strauss's translation "ethics

of ultimate

of

corresponds to what our

translation calls "ethics

ends"; see

NRH,

p.

67.

Thomas Aquinas

solves

this problem of reason and revelation

by saying
we

grace completes nature.

Weber's dilemma was, by this argument, the contrast between the social scientist and the
often said

consequence of an erroneous theology. saint even more

To

make the

pointed,

that belief in revelation entailed belief

in the
view

absurd.

may recall that Weber Strauss may have had Aquinas in

mind when

he

wondered
p.

revelation"

(NRH,

wryly whether Weber's 71). We must, for now, leave

"is

compatible with an

intelligent belief in
reasonable

open the question whether

it is, in fact,

that human reason sometimes acknowledge the suprarational

insights

of revelation.

14.

According

to this account, Weber exemplifies the school of thought called historicism which
chapter of

Strauss discussed in the first

sion

Natural Right

and
fate"

that "the limitations of human thought are set

on

by

History. Historicism leads to the conclu (p. 21). "All human thought depends on

fate,

something

that thought cannot master and whose workings

arose

it

anticipate"

cannot

(p. 27).

15. The term

"vocation"

in the

context of

divine

providence.

Weber

salvaged the term

from its apparently moribund theological context and applied it to the individual's commitment to a way of life or calling his leap in the dark. Thus, for Weber, vocation remains ultimately in the service of the gods. For a more extended statement of the same dilemma, see Leo Strauss, "Progress Return?" or in An Introduction to Political Philosophy (Detroit: Wayne State University Press 1989), pp. 285-89.
16. I
am reminded of a passage

describing

the art of esoteric

writing:

writing in Strauss's book

not

specifi

cally devoted to expounding the philosopher's art of potential recesses? May not every noun be explained
affect the read

"For is

every
a

sentence rich

in

by

a relative clause which

meaning

of

the principal sentence and which, even if omitted

by

may profoundly careful writer, will be

'almost,'

by

the careful reader?

Cannot

miracles

be

wrought

by

such

little

words as

'perhaps,'

'seemingly'?

May
a

not a statement assume a

different

shade of

meaning

by being
it

cast

in the form
a sentence

of a conditional sentence?

And is it

not possible

to hide the conditional nature of such

by turning
length?"

very long sentence and, in particular, Persecution and the Art of Writing, p. 78.

it into

by inserting into

a parenthesis of some

Spelunking
17. Weber
notes the attempts

in the Unnatural Cave

rationalized

25
forms

by

the higher religions to present their creeds in

and their appropriation of philosophical

reasoning for
'unbroken'

use

in

systematic

theology

and apologetics. which

But he

concludes:

compelled at
intellect.'
"

"There is absolutely no some point to demand the credo

p.

religion
non

working

as a vital

force

is

not

quod,

sed quia absurdum

the 'sacrifice of the

From Max Weber,

as

352.

impressed,

Strauss admits that as a young man: "I had been particularly many of the contemporaries in Germany were, by Max Weber: by his intransigent devotion to intellectual honesty, by his passionate devotion to the idea of science a devotion that
an autobiographical

18. In

passage,

was combined with a profound uneasiness

Heideggerian

Existentialism,"

"An Introduction to regarding the meaning of in The Rebirth of Classical Political Rationalism, p. 27. Strauss's
science."

contemporary, Eric

Voegelin,
what was

makes a

strikingly

similar testimonial:

"If Weber
it."

nevertheless

did

not

derail into
ter.
...

some sort of relativism or anarchism, that

is because

...

he

was a staunch ethical charac

So he knew
ed.

right

without

knowing

the reasons

for

Autobiographical Reflec
p.

tions,

Ellis Sandoz (Baton Rouge: Louisiana State

review

University Press, 1989),

Tragedy,"

12.

19. See the book

by Robert Eden,

"A New Birth

of

The Review of Politics

the German academic

59,

no.

2 (1997): 389-92.
end of of

20. Near the

scene

his life, Strauss

at

recalled

how Heidegger

appeared on

like

flash

brilliant light

dusk. Strauss
child."

commented at the time to

Franz

Rosenzweig Philosophy

that

"compared to

Heidegger, Max Weber,

till then regarded

by
of

me as the

incarnation in Jewish

of the spirit of
and

science and scholarship, was an orphan

"A

Giving

Accounts,"

the

Crisis of Modernity, p. 461. Cf. Strauss, "An Introduction to Heideggerean The Rebirth of Classical Political Rationalism, p. 28. 21. Laurence Berns, "The Prescientific World and Historicism: Some Reflections

Existentialism,"

in

on

Strauss,

Heidegger,
movement

Husserl,"

and

in Leo Strauss's Thought: Toward

p.

Critical Engagement,

ed.

Alan Udoff

(Boulder: Lynne

Rienner, 1991),
of

177. One may

speculate whether the

late-twentieth-century

in favor

"global

society"

civil ed.

is,

at

bottom, inspired by Heidegger.

and

22. Leo Strauss, On Tyranny, Press, 1991), pp. 58-59.

Victor Gourevitch

Michael S. Roth (New York: The Free

23. Weber's
notion of man's

separation of values

from any

possible

basis in

nature

is in line

with

the modern

This, the essence of postmodern ethics, is thought to be p. required by a nonteleological science of nature (Berns, "The Prescientific World and 174). This appears to be Strauss's meaning in a difficult passage (NRH, pp. 48-49) in which he
freedom
as self-legislation.
Historicism,"

mentions another possible

interpretation

of

Weber's imperative "Become

norms

what

thou

art":

"According
this

to this
with

interpretation, Weber
or with

rejected objective

because Strauss

objective norms are

incompatible

acting."

human freedom

the possibility

of

neither approves nor expands

interpretation. 24.

Outwardly
"ism."

in his

public profession of scientific

objectivity, Weber

refused

to subscribe to

subservient In this respect, Weber was one of Nietzsche's "scholars or any solely to philosophy. All his life Weber severely restrained any impulse he might have felt to Strauss, Studies in Platonic Political indulge the ecstasy of the "poets or the homines sect or
religiosi"

scientists"

Philosophy

(Chicago: The

University

of

Weber's teaching makes what one is by choosing

such a refusal one's god or

Chicago Press, 1983), p. 186. My point is that the core of impossible; even dedication to science involves becoming

demon.

25. "Not only has rationality disappeared from the behavior studied by science; the rationality of that study itself has become radically problematic. All coherence has gone. We are then entitled to say that positivistic science in general, and therefore positivistic social science in particular, is characterized by the abandonment of reason or the flight from reason. The flight from scientific
reason, which
reason."

out

regret, is the reasonable reply to the flight of science from in The Rebirth of Classical Political Rationalism, pp. 18-19. 26. The precondition for practice of Nietzsche's gay science is that one should be able to "laugh will have 'become of when "the comedy of the whole

has been

noted

with

"'Relativism',"

Strauss,

existence" conscious'

"

truth"

itself;"

of

i.e.,

when man will

have left behind the

the teachers

age of religion,

morality, and tragedy.

truth. It

Gay

science

laughs

at all

tragedians,
will

all

of purpose, all propounders of a

dogma

be

overcome

by laughter,

reason, and nature.

is inevitable that every (Friedrich Nietzsche, The Gay Science,

p.

trans. Walter Kaufmann [New York: Vintage

Books, 1974],

74). Nietzsche

also

tells

us

that

26

Interpretation
in the The
age of

mankind

Christianity
age,

(or Platonism for the people)

was

like

a sleeper

in the grip

of a an

nightmare.

present

characterized

by

the final overcoming of

Christianity,

promises

least a healthier exuberant wakefulness for those few free spirits, like Nietzsche, and, for the rest, at p. 32). sleep. (Beyond Good and Evil, trans. R. J. Hollingdale [London: Penguin Books, 1973],

Standing

behind Weber,

we sense

the presence of Nietzsche as Strauss's true

antagonist.

Against

Nietzsche, Strauss observes that to see every teaching as only a partial perspective is to make oneself not a free spirit but a prisoner to the typically late-modern perspective and, thus, unable to under stand other teachings as they were meant or take them seriously. Strauss does not propound Nietz
sche's

gay

science.

On the

other

hand, Strauss

also repudiates

Weber's

assumption

that philosophy

must, above all else, answer the question how we should live.
"Christianity"

Thus, Strauss is

also not an advocate

of

who would

inflict further
life.

nightmares on

the world. The quiet

is

perhaps the

fruit

of political

philosophy, which moderates (but never dreams that

sleep Strauss offers it can overcome)

science's

the opinions that animate political

27. Strauss learned from Edmund Husserl the

approach

wrongheadedness of modern natural

ophy,"

See Leo Strauss, "Philosophy in Studies in Platonic Political Philosophy, p. 35.

to

knowing

nature.

as

Rigorous Science

and

Political Philos

of the criticism or

28. Strauss's thinking is characterized by his refusal to take the bird's-eye point of view. Much incomprehension of Leo Strauss derives, I think, from modern philosophy's longof

ingrained habit
29. These

taking

the bird's-eye

view.

in an essay Christian Aristotelian, philosophy in Marsilius of Padua, has received via the Arab Aristotelians. Leo Strauss, "Marsilius of Liberalism Ancient and Modem (Ithaca: Cornell University Press, 1989), p. 200. Strauss goes on to
remarks about the clarifies

lack

of a moral

basis for morality

occur at the point

where

Strauss

the tradition of Platonic

political

which a

Padua,"

imply
tion.
and

that

Marsilius began the degradation

of this tradition

by treating

the subordinate ends of the

end of contempla

active, political life almost as though

they

were

independent from the true human

In this way, Marsilius may be seen as transitional between the political philosophy of Averroes Hobbes; he retains contemplation as the ultimate end, but he treats the ordering of political life
paraphrase of
p.

almost without reference to contemplation.

The

Nietzsche is in "A

Giving

Accounts,"

of

in Jewish

Philosophy

and

the Crisis

of Modernity,

465. In this

public conversation with

directness

and

in his

own name, embraces

Jacob Klein. Strauss, speaking with unusual the tradition of Platonic political philosophy represented

by Alfarabi, Averroes, and Maimonides, a reason as fundamentally in harmony with

must

tradition which

interprets Aristotle's teaching

on practical

Plato's

reservation of truth to the

tive intelligence. Thus any claim concerning knowledge of the good

activity of the specula cannot be taken literally, but

and

be interpreted

as rhetoric or

dismissed

as

ignorance. Islamic Philosophy,

ed.

30. Leo Strauss, "Farabi's Arthur Hyman (New York: KTAV bi's interpretation
position.

Plato,"

in Essays in Medieval Jewish

of

Plato, but I
and

Publishing House, 1977), p. 400. Strauss is interpreting Alfaraam fairly confident that this quotation also expresses Strauss's own
and the

He

repeats much

the same analysis in Persecution

31. Allan Bloom, Love

Friendship

(New York: Simon &

Art of Writing, pp. 12-13. Schuster, 1993), p. 263.

Stanley
of

Fish's Miltonic Interpretation

Martin Luther

King

William Walker

University

of

Canterbury

One

of the

many

problems

faced

by

the Miltonist

Stanley

Fish

and other

supporters of affirmative action policies

derives from something that

was said

by
his

one of

the leaders of the American

was

civil rights movement on an occasion

which

he thought

the greatest
a

demonstration for freedom in the

speech,
which

history

of

nation.

In his "I Have

Dream"

he delivered before the

the American

Lincoln Memorial in August 1963, Martin Luther

King described
be

Constitution
all

and

the Declaration of Independence as the nation's promise "that

men as well as white men, would and guaranteed

men, yes,

black

the

unalien

able rights of

life, liberty,

happiness."1

the pursuit of

Although America

had so far according to King, "in so far as her citizens of color are failed to make good on this promise, he proceeded to affirm his hope and his faith that it
would

concerned,"

finally

do

so.

He does this

by describing

his dream

of

how

things would be once this had happened in

with

a series of sentences all

beginning

"I have

dream,"

one of which

is the following: "I have

will not

little

children will one

color of their skin

but

day live in a nation where they by the content of their

in
which

dream my four be judged by the

character"

(p. 219).

King's dream

of a nation

his
in

children

and, if we read this expression

figuratively,
but in is

all people, are

judged

not

accordance with the color of their skin

accordance with

the content of their character poses a problem

expression as

for sup
action"

porters of affirmative
understood

action, at least where the

"affirmative

in

a particular way.

For although,

expression

"affirmation

action"

was used

many have pointed out, the in the early 1960's to refer to activities

such as

monitoring

hiring

and promotion

decisions

and

that

encouraged members of racial minorities

to apply

spreading information for jobs, it has come to

"affirmative
action"

mean

something different

now.

Today,

the

expression

is

commonly used to refer to policies that call for people to make judgments about who gets hired and who does not, about who is let in and who is not, in part or in
whole on grounds of race or sex. people who make some

And it is

on

the

basis

of such

judgments hire others,

action

that the

them then proceed to hire

some and not some

to

to admit

and to turn

away

others.

Given that

affirmative

policies call

for judgments

of people of them

in

part

by

the color of their skin, where

these
which

would

be judgments

by

their race, King's dream of a nation in

his

and all children are not

judged

by

the color of their skin would appear

) interpretation,

Fall 1999, Vol.

27, No. 1

28

Interpretation for
starters, there would

to be a dream of a nation in which, just tive action policies. The problem

cies
posed

be

no affirma

for

supporters of affirmative action poli

by

the "I

Have

Dream"

of something he said them. How can affirmative

is thus that according to in this speech, King appears to have

speech action policies

one

interpretation
against

come out

be

right

if the leader

of the civil

rights movement condemned them?

In the early 1640's, John Milton had the same kind of problem. Shortly after he married in 1642, Milton's wife, Mary Powell, left him; shortly after this, Milton
was

publically promoting
"antipathy"

policy

which would grant

divorce

on grounds

"incompatibility."

of what
problem what

he

calls

and what we now call

Milton's
cause

derived from something that was said was perhaps his most important speech on
speech

by

the leader of

his

in

a rather

historic

occasion.

The

leader is Christ, the

is the Sermon

on

the

Mount,

and the

apparently

damning
shall
put

words

for

people who shared

Milton's

views are these:

"whosoever

away his wife, saving for the

and whosoever shall

cause of

fornication,

causeth

her to

commit adultery:

adultery"

(Matthew 5:32). On
to him

later occasion,

marry her that is divorced committeth when he was responding to ques

says almost

tions

put

by

the

Pharisees, Christ
except

exactly the
which

same

thing:

"whosoever

shall put

away his wife,

adultery:

it be for fornication, her is

and shall
put

another, committeth
commit writers of canon

and whoso marrieth most of

marry away doth

adultery"

(Matthew 19:9). To
and

law,

to

an entire

tradition of

Milton's contemporaries, to the biblical commentators, Christ

on these occasions seemed and

to be claiming that all those who leave their spouses adultery, except those who leave their
spouses
"fornication."2

remarry

commit the sin of

for the
those

reason

that

they

committed what

he

calls

It is because
married

who

leave

their spouses
when

for

the reason of
and

fornication

are no

longer

but

are

divorced that
Those
who

they remarry
spouses

fornicate they
other reason

are not

committing

adultery.

leave their

for any

besides fornication,

however, are still married, which is why, should they proceed to remarry and fornicate, they will be guilty of adultery, where adultery is the act of a married
person

fornicating
or at

with someone other

than his or

her

spouse.

Christ thus ap

pears

to be saying here that the only case in which married people are

truly

least the only case in which married people should be recognized as being truly divorced, is where they separate for the reason that one has com mitted fornication. Should a person leave his or her spouse on grounds of incom

divorced,

patibility, then, that person is not

such.

divorced

and should not

be

recognized as

Given this understanding of what Christ's doing when he spoke them, Milton's problem
movement to
which

words mean or what was

Christ

was

thus that the leader

spoken

of the
which

he belonged

appeared to

have

in

way

clearly
would

signalled

his

opposition to the
can

policy he

advocated and the actions that

follow from it. How

condemned

divorce

on grounds of

if Christ
.

incompatibility
with

be

right

it?
are

Although the issues

different,

the problem

Milton has

Christ

on

Stanley

Fish's Miltonic Interpretation of Martin Luther

essential respects the same as the problem

King
with

29

divorce is thus in

Fish has

King

on affirmative action:

the

leaders

of the movements

to which

they ally

them

selves appear to

have

spoken against

the policies

they

support and

therefore

seriously weakened, if not destroyed, the legitimacy of those policies. By closely reading these apparently disparate documents, we can see that the solutions
these authors adopt to solve their problems are also essentially the specifically, we can see that Fish solves his problem
same.

More

strategy of interpretation and derision which his divorce tracts. Besides allowing us to see that the fierce hermeneutical
of

adopting a particular he observes Milton following in

spirit

by

Milton lives
of close

on

in the

political

writings of one of us

his

greatest

critics, this
are

kind

reading

also

helps

to see that the solutions themselves

we

deeply
clearly

problematical.

And

by

not

only

about

Milton
said.

and

may observing this, Fish, but about divorce,

come

to think more

affirmative

action,

and what

the prophets

Milton

attempts

to solve

his

problem

by tackling

problematical words of which

his prophet, he

argues that

remarkable

is perfectly consistent with what feat, Milton does nothing less than to
and

on: citing in full the mean something in fact they he wants. In order to accomplish this

it head

elaborate a

theory
of

of

linguistic
words
same

meaning

interpretation

and then present

his interpretation

Christ's At the

as one which

is

consistent with

this

theory

and therefore correct. of

time, he identifies the

sues

standard

interpretation

Christ's words,

one which

is

in

a condemnation of

the policy

he supports,
is

as one which violates these

rules and

is therefore incorrect. This

procedure

clearest

in The Doctrine

and

Discipline of Divorce, which Milton published in 1642 and again, sions, in 1643. In the full title of this tract, he identifies the general

with revi

rule which

is to

govern our

interpretation
tract.3

of scripture as

"the

charity,"

rule of

and

he

refers

to it throughout the
faith"

"Charitie,"

he claims, is "the interpreter

and guide of

charitie"

our

(p. 145),

and

"the

general and supreme rule of

is

a rule that

will allow us to avoid

"stubborn

expositions of particular and

inferior

prece

(p. 163. For further

170, 175, 176, 183, 185, 189, 190.). Although Milton begins simply by assuming what charity is,
assertions of

the

law

of charity, see pp.

he eventually
nature of our

provides a more explicit explanation:

"if

we mark

Saviours commands, in

wee shall

finde that both their

wee should so

diligently the beginning and

to others,

their end

consists

charity: whose will

is that

be

good

selves"

as that wee

be

not cruel

to our
grant

(p. 179). Now Milton

makes clear

in the tract

that refusing to

divorce to

spouses who are

a

early incompatible is

uncharitable: no

law

can

"be

of

force to ingage

blameles

creature to

his

own

perpetuall

sorrow, mistak'n

for his
good

expected solace, without of

step in

and

doe

confest

work

suffering charity to whom those nothing holds parting interpretations

of

together, but this

of

Gods joyning,

falsly

suppos'd against the expresse end of all

his

own

(p. 148). Given that

Scripture

must

30

Interpretation
the principle of charity, and given that the
refusal

conform with

to

grant

divorce

on grounds of
which

antipathy

violates

this principle, any interpretation of Scripture

issues in

such a refusal must

be

mistaken.

But if the
mean, it

rule of

falls

short

charity allows Milton to tell us what Christ's words cannot when it comes to telling us exactly what they do mean. This deal
"some"

is why,
case of

when

he

comes to

with

who will question all

his

reasonings
except

on grounds

that "the words of Christ are plainly against all

divorce,

in

fornication,"

Milton identifies just

more specific rules of

interpretation: "All
are

places of

Scripture

wherin

reason of

doubt

arises

from the letter,

set

to be

expounded

by

comparing
issue in
results of

other

considering (p. 164).

Texts"

upon what occasion

every thing is
of

down:

and

by

Implicitly

granting that

literal interpretation

Christ's

words

does indeed

that is, charity in the meaning that Christ forbids divorce on all grounds save those fornication Milton immediately follows his two specific rules to solve the
a violation of and therefore cause reason of

just

doubt

problem.

'The

occasion

which

induc't

our

Saviour to

divorce,"

speak of

he

begins, "was
or to give a

either

to convince the extravagance of the

Pharises in that point,

question."

sharp

and vehement answer

to a

tempting

Milton then

claims that on this

men who

kind

of occasion where

Christ is

dealing
Moses'

with

the

Pharisees,
permitted

according to Milton had taken advantage of

law that

divorce
terms."

on grounds of

incompatibility, "we
general where

are not

to

repose all upon

the literall
instances"

As

evidence

for this

claim, Milton cites the

not

"many

recorded

in the Gospels
mean."

Christ "meant

to be tak'n word for word, but to reduce us to

like
is

a wise

a perfect
not

Physician, administering Given, then, that when Christ is dealing

one excesse against another

with the

Pharisees he
and given

in case of divorce, he is fornication, really dealing with the Pharisees, Christ was not speaking literally when he spoke against divorce. That is to say, he was not forbidding
except

speaking literally but administering one excess that when Christ appears to speak plainly against all

against

another,

divorce
was

on all

grounds,

including incompatibility,
a

except

fornication. What he
he intended
as a

doing

was

engaging in

kind

of overstatement which while at

correction

to the excesses of the

Pharisees,

the same time granting

permission to

good, unhappily married men to divorce on grounds of incompati bility. This fact is further evident from other things he says on this occasion:

So heer he may be
not to cut off all

justly

thought to have giv'n this rigid sentence against

a good man who

divorce,

finds himself consuming away in a disconsolate and uninjoy'd matrimony, but to lay a bridle upon the bold abuses of those over-weening Rabbies; which he could not more a effectually doe, than

remedy from

by

countersway
treme;
straitnes.

of restraint,

curbing their

wild exorbitance almost

into the

other ex

as when we

And that this

own

but to his

fore he treats

bow things the contrary way, to make them come to thir naturall was the only intention of Christ is most evident; if we attend words and protestation made in the same Sermon not many verses be

of

divorcing.

(Pp.

164-65)

Stanley
Having
Christ
with other

Fish's Miltonic Interpretation of Martin Luther

his desired
result

King
on

31

achieved

by

spoke

the problematic words on

adds that one
Moses'

observing the divorce and

"occasion"

which

"comparing"

these words

texts, Milton
would

further

consequence of

literally

here

be that

pronouncement on appears

divorce

recorded

reading Christ in Deu

to divorce on
and

teronomy,
grounds of concludes

a pronouncement which

to grant

legitimacy
and

incompatibility,

would

be "impure, unjust, Christ literally, his former

nor and

fallacious,"

then

his

exposition with the claim that all of

it is indeed
not

consistent with

the

general rule of charity:

to read
with

to

read

him

as

Milton

urges we

do,

consists

"neither

cautionary words,
(p. 166).
on

nor with

other more pure and

holy by

principles,

finally
a

with

the scope of charity, com

manding by his The problem

expresse commission posed

in

higher

strain"

Christ's

words on

divorce in the Sermon

goes on

the Mount
pages
which

is thus solved, but in elaborating

upon

case we missed

it, Milton

for

another

thirty

the exposition and reiterating the

so

rules of

interpretation

ostensibly govern and sanction it. In His comparison of texts expands to

doing, he introduces

some new material.

cover passages on marriage and

divorce in
and

Genesis

and

Deuteronomy,

and other passages

words

in the Sermon

on

the Mount

the Gospels. He situates Christ's

in the

context of the

Gospels which,

revealing grace rather than a law demanding a new anything that would contravene the laws laid down by Moses in Deuteronomy, including the law which granted divorce on grounds of

because they

are a covenant
contain

morality, cannot

incompatibility
in
order

(pp. 167, 179). He

asserts the general principle that we must

take into account God's purposes

and

intentions in commanding
"fornication"

us to

do things

properly to understand the scope of those commands. He argues at great

when

length that

Christ

uses

the

word
fornication"

in his

pronouncement on

divorce, he
actions,

means not

just "actual

(p.

180) but
don"

also

"divers

obvious

which either

sensible men

Christ

means

plainly lead to adultery, or suspect the deed to be already may when he cries fornication. And the
of

give such presumtion

wherby

(p. 181).

Incompatibility
is slightly

rule of comparison

modified

in light

the

fact that

there is scarse any one saying in the

to

Gospel, but

must

be

read with

limitations

and

be rightly understood; for Christ gives no full comments or contidistinctions, nu'd discourses, but scatters the heavnly grain of his doctrin like pearle heer and there,
which requires a skilfull and

laborious gatherer;

who must compare the words

with

he finds,
analogy

with other precepts, with the end of of

every ordinance, and

the general

Evangelick doctrine. (P. 1 82)

But the basic

ment on
remains

procedure

for

dealing

with

the problem of

Christ's

pronounce

divorce in Milton's first direct

intact. First, he
presents a

and rapid engagement with

the problem

theory

of

meaning

by

which

the meaning

of an utterance

is

function

of the

intention

of the person who produces

it,

of of

"meant"

what that speaker

on that occasion.

Secondly, he

presents a

theory

32

Interpretation
which conforms with

interpretation

this

theory

of meaning:

in

order

to determine

the meaning of an utterance,

where

this

would

be to determine

the intention of

the person who produces the utterance, one must follow

contextual

rules of

comparison,

analysis, and charity, rules which he claims are themselves

asserts that
sanctioned

drawn

from Scripture. That is to say that Milton is a function of following rules which are
claims to

validity in interpretation by Scripture. Thirdly, he

with

interpret Christ's
claims that

words on result of

divorce in

accordance

these rules.

Fourthly, he

the

interpreting

Christ's

words on rather

divorce in
than
of

accordance with

these rules is the understanding that

Christ,

being
that

against people such as on grounds of

himself

who were
was

arguing for the

legitimacy

divorce

incompatibility,
of guarantee

in fact for them. Fifthly, Milton

words

argues

because this interpretation

when

Christ's

is in

accordance with

the rules that,

followed,
problem

The
of

validity in interpretation, this interpretation is valid. is solved, but Milton does not leave it at that. One other element
a sustained attack on

his

solution

is

both the intellectual

and moral

integrity

of those who persist

fast

condemnation

in the customary reading of Christ's words as a hard and of divorce on grounds other than fornication. Those who
are

interpret Christ this way expounding the text "too

the "letter of the
ting"

"resting in
and

the meere element of the

Text"

and
"sworn"

immoderately"

(p. 145). These

readers are

to

Text"

(p.

146)

bound

by

"the

strictnes of a

literall interpre
literality"

(p. 147). This is why they

and
servility"

produce

"stubborn

expositions of particular
obstinate and all

and

inferior

precepts"

"are

still

bent to hold this

problem

"alphabetical
upon

(pp. 163-64). Their many meerly

tak'n"

is that they "repose

letters"

the literall terms

words

words"

of so

(p. 164),

and confine the

Christ's Christ's

"to that

which

amounts

from

so

many
Doctors"

meaning of (p. 166).

(pp.

words are

thus

"vulgarly
divorce"

by

these "extreme

literalisms]"

179, 183). It is "that letter-bound servility of the Canon that had "laid this unjust austerity upon (p. 184); we must not be "literally supersti
tious"

(p. 185). Worst

which

of

all, these

interpreters

violate

the

of

Christ from

Milton draws his

most essential rule of

fundamental teaching interpretation

words mean

charity.

Thus,
says

those who

fail

to see that what

Christ's

is

what

Milton It is

they

mean are not

only

literal-minded,

servile, vulgar, superstitious,

stubborn, and obstinate.

not

They

are also

bad Christians.
in Milton's
on which

difficult to

observe several weaknesses account

of the

solution to

his
in

problem. against

First, Milton's
on the

"occasion"

Christ

spoke

divorce

on grounds other

than adultery is

highly

questionable,

since

the

Sermon

Mount,

which

is

recorded

clear

from his

reference to

the

"sermon"

in Matthew 5, and which, as is in which Christ claims not to abrogate

upon

the

law, is

the text

Milton is commenting

in his first

engagement with the

problem, Christ

speaking to the Pharisees but to the multitudes and his disciples. It is only much later that the "Pharisees also came unto him, tempting
was not
him"

(Matthew

about

19:3) and that, in response to them, Christ repeats what he said divorce in his Sermon on the Mount to the multitudes (Matthew 19:3-9).

Stanley
two

Fish's Miltonic Interpretation of Martin Luther

obfuscates the

King
thing

33
on

That is to say that Milton very different

quell and put and shallow

fact that Christ

and to

says the same

not

occasions.

Even if Christ had intended

to teach

but "to

to nonplus the

tempting Pharises;
Scriptures"

lay

open

their ignorance

on the latter occasion (p. 170), it understanding of the is difficult to see why he would have had the same intention in the Sermon on

the Mount when, as Matthew claims, he was

multitudes

teaching his disciples

something

and

the

(Matthew 5:1-2).
attempt to make
"fornication"

Milton's
"actual

mean

much wider than

is also surprising given his argument from occasion. If Christ really intended "but to lay a bridle upon the bold abuses of those over (p. 165), there is no need to get to mean some weening
Rabbies" "fornication"

fornication"

thing approaching incompatibility. It is only

not

on

the assumption that Christ was

what

doing

this to the Pharisees but in

ment serves

Milton's

cause.

fact saying The argument from

he

meant

that this argu

"fornication"

thus proceeds as

if there really is no argument from occasion. Moreover, the argument from general interpretive theory is circular. Christ's words are supposed to warrant
the
rules and

help identify
rules.

the intention which are to govern

words
must

Milton's interpreta be interpreted in he

refers to

tion of Christ's words,

order as

but Christ's As Fish

puts

themselves

to get these

it in his commentary
presumably

on what

Milton's "audacious interpretive

program,"

the words of Christ we use to

also

determine his intention

on one occasion are

to be

understood

intentionally,
Once

and therefore the support

they

give as evidence of an

intention
same

must

itself be
. . .

supported

by

additional evidence

that will in turn

display

the

deficiency.

words

have been dislodged

to

as the

favor of intention,
value

no amount of them will suffice

establish an

repository intention
to

of meaning since the

in

establis

they have

will always

depend

on that which

they presume

That

which

Milton

claims

governs

his interpretation
which

and makes

it

valid

is in

fact the

product of a prior act of own powerful

interpretation

is

sanctioned

by

nothing

but Milton's

belief that it is

right.

In

spite of these

difficulties, Milton's
to speak

solution

to the

problem of what

to

do for
as

when your

leaders
solution

appear

against

the

policies you support

Dream"

lives

again.

For Fish's
supporters

to the problem King's "I Have a

action

speech poses

of affirmative

is the

same

in
on

several

important
an

respects

Milton's for

solution

to

his

problem with

Christ

divorce. In

a series of

debates

on

D'Souza in 1991-92
. . .

and

American university campuses which he published in There's No Such

essay he wrote he had with Dinesh

Thing

as

Free

and It's a Good Thing, Too, Fish does not avoid the text that poses Speech He in fact opens his essay with the very the problem but tackles it head
on.5

"

sentence

that poses the problem:

T have

dream

one

day

my four little

chil-

34
dren

Interpretation
will

live in

a nation where

they

will not

be judged

skin, but
are

by "being employed
Fish
appears

character'"

the content of their

(p. 89).

by the color of their Observing that these words

spent with

in the

service of

the

racism

[King]

his life

combat

ing,"

to be on the
to

point of

directly
and

engaging

the problem,

but

he defers

and proceeds

document

other cases

of what of what

he takes to be the he
refers

bigotry, bad faith, hypocrisy, ignorance,

ideologues"

deceit

to as "con

servative

and the

"ideological

right."

Included

within

this group are

multicultur-

"those
alism,

who

have declared themselves

action,

against curricular

reform,
and

affirmative

deconstruction, feminism, gay

(p.

lesbian studies,
use

etc."

(p. 92). The

essential practice of
purity"

these people, Fish argues, is to

"merit,"

"a

vocabulary
field,"

of moral
"fairness"

91)

words

such

as

"level-playing
"prejudices
sharply
words

and rooted

to promote policies which

in fact

serve

in

interest"

personal

(p. 92). It is
of

after

having

pointed to and

condemned several

instances

this practice that Fish

with

again cites

King's

and concludes who are

his essay

by directly dealing
for

the problem they, and those

policies such

using them,
solution

pose

proponents of race-conscious

as

affirmative action.

Fish's
and

is

grounded

in

an antiliteralist contextual

theory

of

meaning
words of

interpretation.

Objecting
is in

to those who work

them"

by "detaching [King's]
in

from the
any
the

history

that produced

(p. 99), Fish implies that the meaning

of the circumstances
which

particular utterance

part a

function
(p.

it is
to

produced.

And objecting to those

at the expense of

whose practice consists

in

"bowing down

letter

spirit"

the

100), Fish

makes clear that these

circumstances

include the

spirit or

intention
much

with which

that utterance is pro

duced. Although he does

detail in elaborating this contextual of it emerges in the as an alternative to the "plain mean meaning, theory essay of which is adopted by his opponents, the view that ing philosophy meaning is a function solely of the literal meaning of words, or of an intention
not go
language"

into

that is transparent (p. 90).

circumstances,
speaker
ance

where

these

Given that the meaning of utterances is include not just the intention and
of

function
of

of

spirit

the

but

also the

history

the particular circumstances in which the utter

understand any particular utterance, we will have to look past the literal meaning of the

is produced, it follows that to

certain things.

have to do

We

will

words used and produced.

take into account the circumstances in which the utterance was

Validity

in

interpretation, Fish implies, is

of

function

of

following

this

general procedure.

ballot box, restaurants, hotels, to press for legislation which would

from King's speech as one dictated by his antiliteralist, contextual, intentionalist theory of meaning and interpretation. He begins his exposition by insisting that King's words "were part of a historical (p. 99), one which was defined by the fact that "blacks were still being denied access to the
the sentence
which

Fish

presents

his interpretation

conforms with this procedure

occasion"

neighborhoods."

King's
to these

purpose

in speaking

was

put an end

discriminatory

practices.

Stanley
In
so

Fish's Miltonic Interpretation of Martin Luther

"target,"

King

35

Fish takes describing King's purpose, what he wanted, and his himself to be identifying an intention that was not general, but specific to that occasion, "an intention that was locally And, given this intention, Fish claims that what King was saying in this sentence was not 'Let's get rid of all
sincere."

forms

discrimination,'

of racial

laws.'"

More importantly, Fish

removed, the job
will

but only '"Let's get rid of these Jim Crow claims that "what he was not saying was, 'Once
and

they

are

be done

business

can then proceed as

usual'"

(p. 99).

By looking
not

at the circumstances

in

which

King

was

speaking, then, Fish

claims that we can see

that, in the

sentence that poses the problem,

King

was

talking

about affirmative action policies

but Jim Crow laws. And black Americans

not signal

what

he

meant was

that he hoped

his

children and other

would no condemna

longer be

subject

to them. That this sentence does

action policies

King's

tion of affirmative
we take
revealed

is further evident, Fish

of

proceeds to argue,

if

into

account other

features

King's

spirit and

intention down like

as

they

are

by

other parts of

the speech. Fish singles out King's assertion that

he be

and

his

supporters will not

be

satisfied

'"until justice
not until

rolls

waters and

righteousness

like

stream,'"

mighty

"'the

crooked places shall

made straight and the

glory

of

the Lord

will

be

revealed and all

flesh

shall see

it

together'"

(p. 99). These words, Fish claims,

neutral
history."

reveal

that

King
a

was not

"a

man

is calling for the reign of justice that detaches itself from

who

principle, or

for

They

rather reveal

merely him to be

procedural

a man
life."

"committed to nothing less than the transformation of American And this transformation, Fish claims, "will be far from accomplished if legal
who was

discrimination is ination Fish

that
are

ended while

the inequities that have been produced to do their

work"

by

discrim

left

untouched and continue

evil whom

(p. 99). Now, for

and other authorities such as

race-neutral policies

Michel Rosenfeld

leave

untouched

he cites, the fact is the inequities that have been produced

policies such as

by

history

of

discrimination effectively

against
redress

blacks. Race-conscious
them.

affirmative action committed

Since the

spirit of

this

speech

is

to

a nation

in

which

these inequities are redressed, and since

race-

conscious policies such as affirmative action

not

effectively

redress

them,

King
are

can

have

meant on

this

occasion

that race-conscious policies such as affirmative

"'race-neutral'
'color-blind'

action are wrong.

One the contrary,

and

just

two

more of

the coded phrases

betrayed"

by
he

means of which

Martin Luther King's

legacy
color

is

not

honored but

(p. 100).
wanted

Was, then, King saying

of

that

his

children

to be judged

by

the

their

skin?

Although Fish

claims

he "is

not

saying that Martin

Luther

King

would

have
in

wanted and of

his

children

to be judged

by

the color of their skin, as if to claim

that that

were

itself

entitlement,

an

Fish
to

nevertheless proceeds

King

would

have

wanted

his

children

be judged to
would

some extent and

in

some situations

by

the color of their skin:

"neither

he have

wanted

the

color of their skin to

be wholly irrelevant to the determination

of what

they had

36

Interpretation
society"

to offer to

(p. 100). This is

clear

from the

spirit of

the

speech which

Fish further describes

"

by

appealing to

other parts of

it.
"

Citing
Fish

King's

claim

that

'you have been the

recognizes the

suffering,'

veterans of creative color of the skin of

explains

that

King

here

fact that the

his followers has

appears

caused

this

suffering. sentence

And

what

this means is that although

King

in the

problematic

be asserting the difference between skin color and character content, he is in fact asserting in the speech at large that they are to some extent the
to
same:

"in short, the

in

color

of their

skin

has in

some measure

been

the content
what

character"

of their

(p. 100, Fish's

emphasis).

Given that this is fact that

King
is

really

means

other passages of respect and

his address,

policies such as affirmative ac

tion policies

which

take into account the

skin color

in

some measure

the content of character are "faithful to the spirit of

affirmative action

King's

vision

(p. 100). Rather than condemning

policies, then,

King's
It is

sentence about skin color and character condemns

only Jim Crow laws.

part of a

larger text, the

spirit of which

is

committed

to the total transforma

tion of American society. The spirit of

his

speech

is,

moreover, committed to

the practice of

taking into

account the color of people's skins when

determining
Dream"

their merit as a means of

policies are
speech.

bringing

about

this transformation. Affirmative action

thus true to the spirit of Martin Luther King's "I Have a

Those

who

interpret King's

words as a stricture against affirmative action as those

policies are thus of the same earlier

party

"hard-core

literalists"

Fish describes
to

in the essay, those

or

who

"say

things

like 'How

can

it be

racist

be for
or

equality?'

T just

want

is simply to preferential treatment for 'My fair'" decisions to be made on a basis that is (p. 90). Just
objection own utterances
claim

anyone,'

as these

demand that their

an

be interpreted

literally

or

in

accordance with

intention that they

is

obvious to all, so those who cite

King

against words
spirit."

affirmative

action, working

on a plain

meaning philosophy, interpret his

the expense of the
words."

literally and are thus "bowing down to the letter at They stand by "a pinched and narrow reading of his
letter"

They

stand

by

"the

have already seen, this literalism makes them not bad but bad interpreters, only people, for they are violating the principles of equality, fairness, civil rights, and freedom in the name of which King spoke
as we and

(p. 100). And,

in the

name of which

they
. .

themselves claim to be

speaking.

Those

who

take and cite

King's

words as a stricture against affirmative action are

racism"

employ
the

ing

them "in the service of

(p.

89); they

are

working "to

retard

changes

racism]
the

King from being truly

that
of

began"

(p.

99); they

are

and

deeply
like

altered"

aiming "to prevent that history [of (p. 99). These literalists for "whom
anathema,"

morality

the civil rights movement is who,

the others

are, in short, "wolves

Fish indicts, have become adept "at a virulent message in the most high encoding (p. 100). sounding The performance is thoroughly Miltonic. Like Milton, Fish affirms an antilit
terms"

in

moralists' clothing"

eralist

theory

of meaning.

According

to this theory, the

meaning

of

any

particu-

Stanley
lar
utterance on

Fish's Miltonic Interpretation of Martin Luther

any
particular occasion

King

37

is

intention

of the person who performed the utterance.

function mainly of the spirit and Like Milton, Fish affirms interpretation is the
act

an antiliteralist of

theory

of

interpretation, by

which valid

accurately

what the speaker

this can
situation other

the meaning of an utterance, where this is essentially intended to say on that occasion. Like Milton, Fish claims that be done only by looking at the literal meaning of the words used, the

identifying

in

which

the person spoke the words, the

history by

of

that situation, and

things the

person said on

that and on other

occasions.

Like Milton, Fish

occasion

identifies
on which

a particular speaker's spirit or

intention
of that

considering the
and other

that person spoke, the

history

occasion,

things the

speaker said.

Like Milton, Fish

is

claims to

interpret

a problematic text

in

that

he

claims

consistent with the spirit and

intention

of the utterance as

way he

understands

it. Like Milton, Fish implies that because he interprets the text in
abides by his theory of meaning and interpretation. And because his theory, Fish, like Milton, proffers his interpretation as one that of

this way,

he

he is

abides
valid.

by

Like Milton, Fish, in light

his interpretation
the

of

the text,
and

claims

that

the policy he supports is sanctioned

by

leader

of

his cause,

he therefore

implicitly
not

enlists

himself

as one of the

faithful. And like Milton, Fish denigrates

it
as the product of those who are

the competing interpretation

by identifying

just literal-minded, but

also violators of the cause

for

which all claim

to

be

fighting. "A

reading"

pinched and narrow

the

Miltonic flavor is many

unmistakable.

But like Milton's solution, Fish's, too, is

open to

objections.

First,

the

description

of the
since a

inaccurate,
that

going interpretation literal interpretation

of

King's

sentence as

literal-minded is issue in the

view

of the sentence would

wanted all

King

was not

talking

about

how he

Americans to be treated but

who read the sentence as a

only his

children.

Those "conservative

ideologues"

critique of affirmative action policies to subject must read

which all

American figure

citizens would

be

children"

"my
for

not

literally

but

as a

a synecdoche
skin"

for
a

all

American
a

citizens.

Similarly, they
race.

must read

"the

color of their

as

figure

metonymy

And it is
"judge"

questionable

that a literal reading

would

issue in the understanding

of

in this

sentence as

comprehending
The reading to inventive.
the
of

all those acts of

hiring, refusing
is
neither

to

hire,

admitting, and refusing to admit people

on grounds of race which are called

which

for

by

affirmative action.

Fish

objects

literal

nor pinched and

narrow, but

rather

Second,
speech

there

is the
to

problem

with

Fish's identification

of the spirit of

in

relation

which

he

rules out the anti-affirmative-action

reading

the

problematic sentence and claims support

for his

own pro-affirmative-action

reading.

In his discussion

of

the

problematic

sentence,

Fish it

recognizes when

King's

concern with civil rights

legislation, but he loses

life,"

sight of

he

proceeds

to

establish

the

spirit of

the speech at large as one that is committed to

"the

transformation of
would

American
about

by

which

he

means

the transformation that

be brought

by

redressing the inequities that

of

have been

produced

by

all of the racial

discrimination

the

past.

It is mainly

on grounds of

this

larger,

38

Interpretation
that Fish rejects the view that

more comprehensive vision of social change

King

is signalling his disapproval

commitment

of affirmative action.

But in

discounting King's
laws in
his
own commit

to a society that was subject to the spirit and

vision of

comprehensive civil rights

his

account of

the speech, Fish betrays

ments to the
pher

specificity of the occasion and the speech itself. As King's biogra David Garrow makes clear, although King and the other organizers of the
wanted more than

march

the passage of President

Kennedy's
that

civil rights

bill
was

which at that one of

time was before the

Senate,

the

passage of

legislation

the dominant aims of

writ

King
will

and

the march organizers from start to

finish.6

And that fact is

and not

large in the

speech

itself. In

response

to those who ask

him

his followers
until

they they have legislation

when
rather answers

be satisfied,

King

does

not respond

which

redresses

the inequities caused

will

by saying by past

injustices. He
an end

very specifically that they

against

be

satisfied when

is
the

put

to

police

brutality

blacks,

the exclusion of
whites

blacks from
justice

hotels,

forcing
of

of

blacks to live in ghettos, "for

vote.

only"

signs, and the

and

denial to blacks
righteousness

the right to

And because the

after

sentence about

rolling down
that

comes

immediately

this specific
what

description, it

seems reasonable to think that this state of affairs

tice."

is

King

means

by

"jus

The just
a nation

nation

King

describes in

some

detail

on

this occasion, that

is, is
of

in

which

blacks

are

free,

where where

this means
are

being free from

forms

discrimination This is

and

persecution, and

blacks

equal, where this means

having

the same rights as whites.

not

to say that

King

and the other

leaders

of

the march on Washington

were not

committed, as Fish claims, to the transformation of American life. But

the particular transformation that was uppermost in

sion was not the total about

King's

mind on this occa

transformation that Fish

and others

think can

be brought

by preferential policies. It is the limited transformation of American life that King believed would result from legislation that would ensure that blacks enjoy what King in his speech calls "citizenship (p. 218). It is the transformation that he thought would occur when blacks went from being denied civil rights to having them. That is why King describes himself and his followers
only
rights"

on

this occasion not as proponents of policies aimed at redressing past

as

injustices,

but

"devotees

rights"

of civil

(p. 218). And that is why when,

the passage of
of

after

King

had

spoken, Bayard

Rustin,

one of the organizers of

the march, identified the spe

cific goals of the march as

being

Kennedy's
a

civil rights

bill,

two-dollar minimum wage, program,

desegregation

schools,

federal

public-works

job

federal

action

to bar racial

discrimination in
p.

employment practices,

but

not preferential policies

(Garrow,

284).

By identifying
main

the goals of the to achieve a

protestors

in this way, Rustin indicates that the

which past

idea

was not

society in
were ever

injustices

against

blacks had been

which

redressed

(as if that
longer

possible); it

was to achieve a

society in
and

blacks
is

would no

be

segregated

from whites, persecuted, claiming that

discriminated against, especially in

King's
speech committed to a

the job market. In

the spirit of

Stanley

Fish's Miltonic Interpretation of Martin Luther

King

39

society in which the effects of all past injustices to blacks were redressed, then, Fish fails to live up to his commitment to the historical specificity of the occa
sion and

therefore misidentifies the spirit of the

we recognize

speech.

Once
which

that the spirit of the speech is committed to a society in

there is the same

freedom

and

equality for blacks

committed

as

there

was

for whites,

we can see that

King

was not

talking

about policies such as affirmative action

which are aimed at was not

redressing injustices

in the

past.

And because he he

talking

about such policies on

this occasion, it is

not clear what

thought of them on this occasion, and what

civil rights

he

would

have thought

of them once

legislation

was passed.

That

King

was

dreaming

of a nation
were

in

which

his
not

children would not

be discriminated

against

because they

black does dis

in

necessarily

mean that once

legislation

was passed which outlawed that

about and

crimination, he
which

would not proceed

to dream

fight for

a nation

the ongoing effects of past discrimination were

redressed

through

race-

conscious policies.

Taking

into

account the occasion and spirit of

the

speech

does not, then,

his
support was

as

Fish claims,

allow us to see that

King

was

clearly signalling
to see that

for

affirmative action

policies;

neither

does it

allow us

King
would

clearly signalling his

about them.

opposition to

them.

Taking
what

into

account

the
or

spirit of the speech allows us

to see that it is

unclear

King

thought,

have thought,
even

But

if Fish

were right
which

in claiming that the

spirit of

the speech is commit

ted to a society

in

the ongoing

effects of past racial

injustice have been

to see that
race-

redressed, it is

not

the case that

taking it into

account would allow us

King

in this

speech signals

his

agreement with

Fish

and

Rosenfeld that
achieve

conscious policies such as affirmative action are

the way to

it. As

we

have seen, Fish tries to argue that King would have agreed with him on this specific point by citing King's claim that "you have been the veterans of creative
suffering."

But it

seems unreasonable

to think with Fish that in saying this

skin

King

meant

that the

color of

the black

protestors'

has in

some measure

been the

content of their character,

ates

between the
we

color of

especially since a few sentences later King differenti his children's skin and the content of their character.

Even if
signals

do

think this,

it

seems unreasonable

then to infer that

as
affirmative

King here
action

his

approval

of race-conscious

policies

such

to the

redress past racial

injustice. The fact that

King

was

saying that the

color of

black

protestors'

skin

has been the

content of their character and

has

generated

their suffering
that

would not

necessarily

imply

anything

about

how

King

thought

fact

should

be

redressed.

Indeed, if
and read at

we are

it

as an

going to discount the historical specificity of the speech indication of what King thought about policies which are aimed

indications that King would have redressing past injustices, there are some seem to indicate that he thinks would action. affirmative bothered been King by
racial

discrimination is

not a good and

thing by referring in

this speech to the

"chains

discrimination"

of

(p. 217),

by

referring to "the

evils of segregation and

40

Interpretation
in
an earlier speech address

discrimination"

from

which

he took

some material

for his

"I Have

Dream"

(see "The American

about the

Dream,"

in King,

p.

216).

King

is

on these occasions

talking

discrimination

of whites against

blacks,
against
as

but it is himself

hardly

self-evident

that,

while

blacks, he is recommending
concedes

or would recommend

condemning discrimination it against whites. Now

Fish
with

in

one

of the

other

essays

he

wrote

for his debates

D'Souza, "You Can Only Fight Discrimination

tive action calls

Discrimination,"

with

affirma

discrimination (and it is precisely because it does so that, according to Fish, it can be an effective means of re pp. 70-79). So, affir dressing racial injustice. See There's No Such Thing
a particular
of racial
. . .

for

kind

mative action calls

for

racial

discrimination, King in
against

this speech and elsewhere

and

indicates that discrimination

explicit

blacks is

bad thing,

King

gives no
non-

indication in this

speech that state-sponsored

discrimination

against

blacks

would

be

a good thing.
seems reasonable

Given

all of

this, it

to

doubt that

King

thought the racial

discrimination

by necessary to achieve a soci in which past racial injustices had been ety redressed, even given that this is what he had in mind. That is to say that there are some indications in the speech
called affirmative action was

for

that

King

would

have

agreed with affirmative action

babies
as

such

as

Stephen
and

Carter

and

other

post-civil-rights

black

scholars

such

Shelby

Steele

Thomas Sowell who,

the civil rights

desiring

more social change

than that brought about

by

legislation, doubt
as we

that affirmative action

must resort not

it.

This is why,
and

have seen, Fish

is the way to achieve to King's speech but to

himself

Rosenfeld to

get the claim that affirmative action policies are the

redress the ongoing effects of past injustices. And this is one reason why people such as Sowell can reasonably maintain that affirmative action has been a perversion rather than an extension of the civil rights movement led

only way to

by

King. In

bringing

Miltonic

strategies to

bear

upon

his problem, then, Fish is thus

about a

fair
in

enough

which

in claiming that King's sentence about his children is his children would enjoy civil rights and thus cannot

legitimately

society be

read as proof of equates with

King's

opposition to affirmative action

against nonblacks).

discrimination

Not

content to

(which Fish rightly disarm the prob

of affir

lematical
mative

sentence

by showing by

that it is

basically

irrelevant to the issue

evidence of

action,

however, Fish
of

proceeds to turn

it into

King's

support

for

affirmative action
as the
"spirit"

fies
in

making its meaning serve what Fish mistakenly identi the speech. This amounts to saying that in a short speech
a

which

King

said, "I have

a nation where content of

they

will not

dream my four little children will one day live in be judged by the color of their skin but by the
meant that the color of

their

character,"

he really
part

his

children's skin
of a nation

is the
which

content of their character and that

he is therefore

dreaming

in

they

will

be judged in

by

the color of their skin. In

saying this, Fish

Stanley
presents an on

Fish's Miltonic Interpretation of Martin Luther

as

King
of
mild

41

interpretation which,

he

says of

Milton's interpretation
'manipulation'

Christ
to

divorce, "is
it"

so strenuous that even

Supplement,"

the word
p.

is too

describe

("Wanting

54).

NOTES

and

1. Martin Luther King, Jr., "I Have a in A Testament of Hope: The Essential Writings Speeches of Martin Luther King, Jr., ed. James M. Washington (1986; New York: Harper Collins, 1991), p. 217. Further references are to this edition. 2. For
and the

Dream,"

fuller

account of the contexts

in

which of

Milton

was working, see

Arthur

Barker, Milton

Toronto Press, 1942), pp. 63-120, and Ernest Sirluck, ed., Complete Prose Works of John Milton (New Haven: Yale University Press, 1959), vol.

Puritan Dilemma (Toronto:

University

2,

pp.

137-58.
. .

3. John Milton, The Doctrine and Discipline of Divorce. in The Prose of John Milton, ed. J. Max Patrick (New York: New York University Press, 1968), p. 143. Further references are to
,

this

edition.

4.

Stanley Fish, "Wanting

in David Loewenstein

Supplement: The Question

of

Interpretation in Milton's

Early

Prose,"

James Grantham Turner, eds., Politics, Poetics, and Hermeneutics in Milton's Prose (Cambridge: Cambridge University Press, 1990), pp. 57, 59. For further com
and
Road,"

mentary on the same problem in Milton and the broader theoretical issues involved, see Fish's "Introduction: Going Down the Anti-Formalist Doing What Comes Naturally (Durham:

Duke

University Press, 1989), especially pp. 8-9. Stanley Fish, "Speaking in Code, or, How To Turn Bigotry and Ignorance into Moral and It's a Good Thing, Too (Oxford: in There's No Such Thing as Free Speech Oxford University Press, 1994), pp. 89-101. 6. David Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Lead
5. See
Principles,"
.

ership Conference (New York: William Morrow and Co., 1986), pp. 267-86. 7. See Stephen Carter, Reflections of an Affirmative Action Baby (New York: Harper

Collins, 1991); Thomas Sowell, Civil Rights: Rhetoric or Reality? (New York: William Morrow, 1984); Shelby Steele, The Content of our Character (New York: St. Martin's, 1990).

Discussion

Constitutional Government
The Political Science
of

and

Judicial Power

The Federalist

Thomas L. Krannawitter
Azusa Pacific

University

Athenian Stranger: Is it
Kleinias:

a god or some

human

being

who

is

given

the

credit

for

laying

down
a god

your
.

laws?

A god, stranger,

Plato, The Laws

One
who asks

the law to rule

.

...

is held to be asking

god and

intellect

alone

to

rule

Hence law is

reason without passion.

Aristotle, The Politics

The

[civil]

magistrate

to be

ordained of

may also, in a more strict and God, because reason, which is the
to

proper

sense, be said

voice of

God, plainly

requires such an order of men

be

appointed

for

the public good.

Samuel West,

sermon

delivered

during

American Revolution

But it is the
the

reason of

the public alone that ought to control and regulate

government.

Publius, The Federalist

Publius
tions, in Federalist 78, "the judiciary, from the

writes

nature of

its func Constitu

Publius

will always

be the least dangerous to the be least in

a

political rights of or

the

tion; because it
goes on

will

to

explain

why the court

capacity to annoy is the "least

injure branch

them."

dangerous"

of

the national

government:

The
the

executive
purse.
.
. .

holds the

sword of the community. on

The legislature

commands

The

judiciary

the contrary has no influence over either the sword

the strength or of the wealth of the society, and

or the purse, no

direction

either of

can take no active resolution whatever.

nor

It may truly be

said

to have neither Force

upon the aid of the exec

Will, but merely judgment; utive arm even for the efficacy

and must

ultimately depend

of

its

interpretation,

Fall 1999, Vol. 27, No. 1

44

Interpretation
But this
opinion of the

judiciary
of

as the weakest
and

branch

of government upon

un

able to

implement its

own

decisions,
its

in fact dependent

the elected

branches for the

"efficacy

judgments"

is

not shared

by

the conservative

particular

intelligentsia today. To the contrary, many conservatives think the judiciary, in the U.S. Supreme Court, but also the federal circuit and appellate

courts as well,

has become the best

most powerful,

influential,

and tyrannical

branch

of the national government.

Perhaps

one of the

examples of the antijudicial

conservative circles
on

is the
and

now-famous

(or

infamous?)
was

fever running high in First Things symposium

"The End
of

judicial activism,

the ensuing turmoil it

Politics"

sparked.

Democ

racy?

The Judicial Usurpation

of

published

in the November 1996

conservative

edition of

originally a collection of essays First Things, but it created such a

scholars,
and

firestorm among
tures in the

intellectuals

and

including

special

fea

pages of

National Review, Commentary,

The New Republic, that

it formed the basis

of a

book

later.2

published a year

As the title indicates, the

political power

central question was whether activist

judges had

"usurped"

from

the people
via

by

"displacing"

the constitutional arrangements of self-government

judicial

review

(the
and

nullification

of congressional

law

by

the Supreme the

Court). Moreover
question was

this proved to be the real source of controversy

we

raised, "whether

have

reached or are

reaching the

point where
regime"

conscientious citizens can no

which the courts as

longer Some

give moral assent

to the existing

have

created.

participants

in the

symposium went so

far
a

to compare the rise of judicial activism

during

the past

forty

years

as

prelude to an

American

regime comparable to

Nazi Germany: "America is

here."

not

and, please that the

God,
can

will never

denies it

happen here

become Nazi Germany, but it is only blind hubris and With regard to may be happening
. .
.

courts'

most egregious violations of the

Constitution
on

as well as the sustained

por

attacks on traditional

morality, such as their stand

of

abortion, euthanasia,
and critics no

misreading First Amendment, some conservative that "[t]he government of the United States of America
cise"

nography, and their radical

clauses of the

the

"establishment"

"free

exer

have

concluded

longer

governs

by

the consent of the

governed."

According
has
. . .

to the editors of First

Things,

this is

because "the
how

judiciary

declared

that the most

important

questions about

we ought

to order our

life together
activism"

are outside the purview of

'things

of

[the American people's] knowledge.'" (See End of Democracy? pp. 3-5.) One might say that "judicial has become the rallying cry for main
stream conservatism.

During

the

Cold War, conservatives,

were united
at

amalgamated

from

variety

of political

theories and perspectives,

by

the fight against communism abroad and socialism

primarily if not solely home. But in the

post-

Cold War era, the destruction of the Soviet Union has left conservatives search ing for another common enemy against which can coalesce. That common

they

enemy The

might move

turn out to be our own

Supreme Court. then, is

for

constitutional reform,

becoming increasingly

popular

Constitutional Government
among
tool
conservative scholars and argument

and

Judicial Power
judicial threat to
do. In

45
self-

jurists. Because

of the

government, the

goes,

we must

invent

some new

legal-constitutional
particular

by

which

the elected

branches

can check what the courts

we must

limit the damage

courts can

inflict using judicial

review.

Judge Robert

Bork, for

example, wants to alter the constitutional separation of powers with

an amendment that would either subject

Supreme Court decisions to

modifica

tion or reversal
review

by Congress, simply deprive the court of the power of judicial altogether (The End of Democracy? p. 17). The reason for Bork's easy
or

going attitude about changing the nature of the Constitution is that he thinks the Constitution was flawed from the beginning. Bork writes, "On the evidence, we
must

conclude, I think, that this

the inevitable

tendency

of

courts,

including

the

Supreme

Court, is
cial
more
which

result of our written

Constitution

and the power of judi

review."3

This

criticism of criticism of

the

Constitution, however, flows from Bork's

principles

fundamental
built

America. Bork believes that the

for

the Patriots of '76

fought the Revolution

and upon which the

American

regime was
God"

were

the central

bound up in the "laws of nature and of nature's flawed. (See Slouching, pp. 56-82.) He has attacked inherently teaching of the Declaration as the basis of modern liberalism, includ
principles of what

ing

the

development

has become known

as the administrative or regula

same

tory

state,

as well as

the

sexual revolution of

the 1960's. Of course, the

with

natural rights

theory

enshrined

in the Declaration,

human equality

as

its

core, can be found in numerous documents from the American

cluding many of the original state constitutions. to cite but one example, states that "All men are born free
certain

Founding, in The Massachusetts Constitution,

and

equal, and have

rights."

natural, essential, and

opinion

unalienable

Despite

such

evidence, Judge

Bork holds the

experience.
. .

that "Our constitutional

not rest upon

liberties

arose out of

historical

theory."4

They do

any

general

As I
things

shall

discuss shortly, judicial

because they

review

is

required

which are permanent and unchangeable

things

only if there are certain which are beyond the

scope of

majority
things

rule

are the

very

ground

from

which

majority
nature.

rule arises

such as unalienable rights which all men possess

by

These

must

be

protected

from

an abusive

majority

by

branch

of government

insulated from the immediate tides

such

of

majority

will.

The

judiciary

branch. As I

shall

also

make clear,

however, if

one rejects the

is the only idea of

natural

rights, then there is no

rational argument against

the majority
rule

tyrannizing
unquali

the

minority.

Absent the idea

and an an

of natural

rights,

democratic

becomes

fied majority rule, cial review becomes

Judge Bork.

independent

judiciary
rule.

armed with

the power of judi the case with

impediment to that

This, I believe, is
he

By

rejecting the

theory

of natural rights,
with an

embraces unqualified

majoritarianism, which

is incompatible

independent

judiciary

as well as
a

a constitutional regime that protects

consen'ative

minority

rights.

In the end, Bork,

and practice of

leading

judge

and scholar, rejects

both the theory

American

constitutional government as envisaged

by

the

Founders.5

46

Interpretation
But
conservatives

by

definition

want

to

"conserve"

"preserve."

or

They

must

be willing to ask themselves, therefore, what it is they are conserving ing. In general conservatives like what is traditional and old. They are
of change.

or preserv skeptical

As

a matter of

historical fact,
revere the

an

independent judiciary,

equipped

with power of

judicial review, is
should

part of our constitutional tradition.

Thus

our

first inclination
able

be to

judicial branch

as a traditional and

desir
Thus

feature

of the

Constitution. Intelligent conservatives, however,

good:

understand

that not all that

what

is traditional is
should

there are, after all,

bad

traditions.

is traditional
good.

be

revered not

it is

That is to say, the task for

of

conservatism seems

simply because it is old, but because to be a matter of

separating
and

judging
former

what

in

our

tradition

is

good

from that

which

is not,

defending

the

while
v.

reforming the latter.

In his decision in
the "essence of

Marbury
of

judicial

duty"

is to

Madison, Chief Justice Marshall remarked that But, according to "say what the law
is."

Marshall,
that "the

this

function

the

judiciary is

to be understood in

light

of the

fact

Constitution

...

is

superior paramount

law,

unchangeable

by

ordinary
role

means"

(5 U.S. 137). It is because the Constitution is

superior

law that the

of an

independent

judiciary

is

so

important. Thus the

question of

changing the
the

nature of

the judicial power should come only after serious

reflection on

relationship between the Constitution, the courts, and the moral and political problems we are faced with today. We should remind ourselves, at the same

time, that it Thus

was the

legislative branch that Publius

warned would

be the

most

serious threat to our

individual liberty.
as
and

first duty,

Americans,

as

conservatives, is to

understand

the

nature of

the

judiciary

the separation of powers as

those who wrote and ratified the Constitution.

reform

Then

we must

originally intended by determine whether

such an endeavor than

is desirable. We

can

find

no greater assistance

in

by turning

to the political science of The Federalist and

looking

in

particular to

the remarks of

Publius concerning

separation of powers and the creation of an

independent

judiciary.6

Judge Bork's

proposal to subordinate the

judiciary

to the elected
pages of

branches

brings to light

one of the

tensions running throughout the

The Federalist:

ment.

namely the juxtaposition of self-government, or republicanism, and good govern One aspect of this tension is the combination of protection for individual

with the necessity of having stability and energy in government. Americans in those early years were distrusting of a strong centralized gov ernment; they had, after all, just fought a war against England, a government

liberty

they
and

thought too strong and too centralized. Their therefore

inclination

was to

decentralize
at

defuse

political power
aware

among the states and citizens. But

impotent. Fresh in the memory

the

same time all were

painfully

that the government created under the Arti

of Ameri-

cles of

Confederation

was weak and

Constitutional Government
cans a

and

Judicial Power
of

47

during

the

debate

over ratification was

Shays's Rebellion

1786,

where

group

of enraged

Massachusetts farmers

managed

to close the courts in Berk

shire,
of

Hampshire, and Worcester counties, preventing lawsuits for the collection debts, and nearly took the federal arsenal at Springfield. Shays's Rebellion
which

demonstrated the dangers to

points out

the new

nation was vulnerable. of

As Publius
corruption

in Federalist 15-22, level

combined would

under

the Articles

Confederation

at the state
enforce eralist

with

the

inability
violent

of the national of the

government to

its

own
p.

law

lead to "the

death

Confederacy"

(Fed

16,

114).

The Americans had fought the Revolution because they claimed that only self-government was legitimate government. Self-government meant govern
ment
rights.

by

consent, but it also implied

years

governmental and

protection

of

individual

In the

between the Revolution

the

Constitution, however,
means

Americans erty
rights

"consenting"

were

to violate the rights of their fellow trampled upon

in

particular

were

by

such

of worthless

being

currency and nullification of contracts. American destroyed by democratic means. If the American experiment in

Prop issuing democracy was

citizens.

as

the

self-gov

ernment

failed, it

would show

the world that the claims to

needed a

freedom

and

self-

government were Utopian.

Self-government
Publius.

"republican

remed

and

it

needed a republican advisor:

The foremost

object of

the Constitutional

Convention, then,

was

to design

system of republican self-government

in

such a

ing

into

mob rule.

This

problem underlies

way Madison's famous

as to prevent

it from turn in Fed

statement

eralist

51:

But If

what

is

government

itself but the

greatest of all reflections on

human be

nature?

men were angels, no government would neither external nor

be

necessary.

If

angels were to govern

necessary.

men,

internal

controuls on government would

administered

In diffi

framing

a government which
must

is to be
it to

by

men over

men, the great

culty lies in this: You and in the next place,

first

enable

the

government

to controul the governed;

oblige

controul

itself.

Men

are not

angels, and therefore

unchecked majoritarianism provides

little
to be

hope for
with the good

good government.

The arbitrary
of

will of

the majority
order

is incompatible

happiness"

"safety
do

and

the

people.

In

for

government

it

must not

but it

must

what

changing simply follow the is right. More specifically, government

unstable and

whims of

the majority,

must

"establish individu

justice,"

meaning primarily securing the

unalienable natural rights of

als,

which

is

not

the same

thing

as

powerful will.

(Cf. Plato's Republic, bk. (through

following 1.) It
public

the

dictates

of

the majority or most

a

is to say that in

self-governing

republic, the

government

policy)

should emphasize and capital not

ize

on what

is

good

in

public

opinion, and

de-emphasize, if

reform, what is

bad. It is

also

to say that

public opinion

in many

ways sets a

limit

as

to what

48

Interpretation
or cannot

government can

do

at

any

given time.
what

Government (as

well

as an

individual)
unjust.

is therefore

confined to

doing

is

most right and reasonable what

in

a particular political situation, or at a minimum

doing

is least wrong

and

imperative, provides guidance for action in the service of justice. To paraphrase Aristotle, it means natural right is a part of political right (Nicomachean Ethics, 1 134b 1 135a). From the perspective of The Federalist, justice is not identical to the will of Prudence,
as opposed to a categorical

the

majority:

the majority may

from time to time be feature

possessed of a good

will,

but the

principles of

justice

and right are a

of an

unchanging nature, a
will of

nature that

is discernible

by

unassisted reason.

From its inception, however, the itself too far from the
the

Constitution has been

people,

attacked

for

distancing

for

being

too antimajoritarian, as if majority will and

right were one and

the same. This was the central criticism of many

"Brutus."7

Anti-Federalists,

most

fa

mously
of the

And

as the

Supreme Court is the

most undemocratic

feature

Constitution, it is
to
to suggest

understandable

obstacle person

self-government.

Indeed,

why it was attacked as setting up an Robert Bork is far from being the first

direct control of the elected bringing branches. During the Founding Era similar reservations about the Court's power were voiced by various constitutional critics, including the author of the Decla
ration of

the Court under the

Independence, Thomas Jefferson.

Before
order

any further, however, a few preliminary remarks are in concerning the structure of The Federalist. The Federalist can be divided into two parts: of the eighty-five papers, num
we proceed
are concerned with

bers 1-36
necessity
of

the general subject of union, and

in

particular

the

of union

with what

for the safety of the states. The first part of the book deals is lowest in political life: necessity. The theme of the second part
numbers

the

book,

37-85, is

republicanism,

or the merits of the proposed

Constitution. The underlying theme of part two is the relationship between the general form of republican government and the particular structure of the pro
posed

Constitution. Publius

wants

to show that the

Constitution is

not

merely

republican, but republicanism at it best. The second part, then, goes beyond necessity to a discussion of what kind of government is good. From part one to
part

two the argument moves from the low to the high. And within part two the
of

discussion

the structure of the proposed

of the national

Constitution

moves
of

from

the most

democratic branch

government, the

House

Representatives

(numbers 52-58), to the least democratic branch, the judiciary (numbers 7883). Both the structure of the book as a whole and the structure of the second
part serve a rhetorical purpose:

the

book

as a whole

begins

on ground common

to
of

both

potential

friends

and enemies of the

Constitution,
begins

that

is,

the necessity

safety, and thus

union.

The

second part

with the most

democratic

branch,

to meet the objection that the proposed

Constitution is

not representative

Constitutional Government
enough.

and

Judicial Power

49
is

One

sees that

insofar
book

as

the primary threat to republican government

the

legislature,

the movement from most

as a whole:

democratic

to least

democratic

reflects

the movement of the

from the low

to the

high. (Cf. Kesler,

the

"Federalist

10,"

pp.

19-21.)
the

The

separation of powers

first in the
9

catalogue of

improvements in
Federalist

science of politics announced

in

number

is the
of

subject of

papers

47-51, preparing
proposed

the way

for

discussion

the particular structure of the

Constitution in the remaining papers. The issue under consideration is not whether separation of powers is necessary for good government, but how best to keep the powers of the different branches separate from one another: "It
is
sides,"

agreed on all

Publius writes, "that the

to be

powers

properly

belonging

to

one of the

either of the other

directly completely by departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the
ought not and

departments

administered

administration of
an

their respective powers. It will not be

and that
it."

denied,

that power is of

encroaching nature,

it

ought to

be effectually

restrained

from passing
power as

the

limits

assigned to

After

laying

out the

theoretical limits of

signed to the and most

legislative,

executive, and judicial

branches, however, "the

next

difficult task is to
"is the

the invasion of the

signed power

others."

security for each, against how best to secure each branch in its as Indeed,
provide some practical

great problem

to be

solved"

(Federalist

48,

p.

308).

In

papers

48, 49,

and

50 Publius discusses three proposals, respectively, for

maintaining the separation of powers, rejecting each of them in turn. He then presents his own teaching on the subject in Federalist 51.

Number 48
aries of

asks whether

"it be

sufficient to

mark,

with

precision, the

bound
But

these

departments, in the

constitution of the government, and

to trust to
as

power?"

these parchment barriers

against

the encroaching spirit of

barriers"

Publius demonstrates, these "parchment

are

inadequate to

prevent

the
that

legislative branch from encroaching

"parchment
ment
barriers"

on

the other two

and

branches,

given

are

legislative in nature,
sphere of

that "the
and

legislative depart

is

everywhere

extending the

its activity,

drawing

all power

into its impetuous

The
various

vortex."

purpose of separation

is

not

only to

keep

power

dispersed among the

of the regime.

branches, but in

particular

to work against the

tendency

In

republican

monarchy that tendency is for power to accumulate in the executive, but in America the tendency is for power to accumulate in the legislative
against

branch: "[I]t is
that the
tions."

the enterprising ambition of [the

all

legislative] department
power

people ought

to indulge

their

jealousy

and exhaust all their precau

Publius

gives three reasons a republican

why the nature of

of government:

legislative
".
. .

is the

most

threatening in

form

(1)

[I]n

a representa

tive republic,
extent and the

where

the executive magistracy

of

duration

its

power

is carefully limited, both in the the legislative power is exercised by an

influence
over

assembly,

which

is inspired

by

a supposed

the people with an

50

Interpretation
confidence

intrepid

in its

strength."

own

Being

more attached voice of

to the people

directly,
a
with

the legislative

branch believes it is the true

the executive and

the people and

has

"supposed

influence"

judiciary lack,

therefore

operating

"intrepid

confidence."

(2) "Its

constitutional powers

being

at once more

extensive and
mask under

less

susceptible of precise
and

limits, it
The

can with the greater

facility,
it judi

complicated

indirect measures, the

encroachments

which

makes on the co-ordinate

departments."

powers of the executive and

ciary

are much more

limited

and simple, and therefore

transgressions of their

assigned power are much easier

to detect than in the legislature.

access

(3) "As
.

the
and

legislative department
a

alone

has

to the pockets of the people

prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater

facility
a

to encroachments of the

former."

The legislature

alone

has the

power of

the purse, and therefore controls the salary of other office-holders.

This

creates

financial
Publius'

dependency

on the

legislature

by

the other branches.

with

Constitution

solves

these problems

three corollary constitu

tional responses:

Senators
people

by

state

(1) The composition of Congress, especially the election of legislatures, reduces their claim of being the true voice of the
3). In particular, it is the judicial branch that
will

(Art. I,

sec

defend the

constitutional rights of the people against an

therefore in many respects

being

a more

encroaching or usurping legislature, important voice for the people, and

of the

thus attaching their sentiments to the

Constitution, instead

legislature.

(2)

By
in

enumerating
a

fairly clear by prohibiting changing the rate of and judicial branches during tenure of office, Congress
(3)
And
the other
sec.

specifying the legislative powers, the Constitution defines manner what Congress can and cannot do (Art. I, sees. 8, 9).
and
"compensation"

for

the executive
or

cannot

bribe
sec.

threaten

branches
49

with

salary increases

or

decreases (Art. II,

direct
and

1; Art. Ill,
recourse

1).
papers
and

In

50, Publius

considers whether
against

easy

to

the people

is

an effective

deterrent

breaches
for

of constitutional authority.

Number 49 discusses Jefferson's

controversial constitutional

proposal

occasional conventions to

decide
idea
of

questions,

while number

50

examines the

regular, periodical appeals to the people.

Thomas Jefferson had

proposed constitution

"subjoined"

to his Notes

on

the

for that

state.

Jefferson's draft

provided that

State of Virginia a "whenever

each

any two

of the

three

branches

of government shall concur

in opinion,

by

the voices of two thirds of their whole number, that a convention

for altering the called for the

gins number

constitution or

purpose"

49

by

correcting breaches of it, a (Federalist 49, p. 313. Emphasis original). Publius be saying that Jefferson's plan, "like every thing from the same

is necessary convention shall be

pen, marks a turn of

more
can

thinking
as

original, comprehensive
a

and

accurate;

and

is the

worthy

of

attention,

it equally displays

fervent

attachment to republi propensities against

government, and

an enlightened view of

the

dangerous

Constitutional Government
which

and

Judicial Power

51
to
of

it

ought to

be

guarded."

Publius

acknowledges that an appeal

directly
"worthy

the people

for

questions of constitutional a

interpretation is
to

not

only

attention,"

but "displays

fervent
is

government."

attachment a

republican

Per

haps, however, Jefferson's

Publius
acknowledges

little too republican, too democratic? that "the people are the only legitimate fountain
plan

of

power, and it
eral

is from them that the

of government

constitutional

charter, under which the sev

derived."

branches
strictly
not

hold their power, is

And therefore "it

seems

consonant to the republican

theory, to

recur

to the same original

authority,
model ments

only

whenever

government,"

the powers of

it may be necessary to enlarge, diminish, or newbut also "whenever any one of the depart
the chartered authorities of the
great

others

may

commit encroachments on

According
a
made.

to

Publius, "[t]here is certainly

be
a mechanism

force in this

reason

As

result, there should

by
use

which recourse

to the people can

be

But Publius

wants to

limit its
will

to "certain

great and

extraordinary
against the

occasions."

There are, Publius

appeals

explain, "insuperable

objections"

idea that frequent

of power within

to popular opinion will

limits."

keep

"the

several

departments

their constitutional
plan

To begin, Jefferson's

fails in

the case "of a combination of two of the

not

departments
as

third."

against a

Publius does

dwell

on this objection,

however,

"it may be thought to lie rather against the modification of the principle, than More important is the tendency of frequent recurrence the principle or reverence the people will have for to the people to diminish the
itself." "veneration"

the Constitution:

[A]s every

appeal

to the people

would

carry

an

implication

of some

defect in

the

government, frequent

appeals would

in

great measure

deprive the

government of

that veneration, which time

wisest and

bestows

on everything, and without which perhaps the

freest

governments would not possess

the

requisite stability.

People it has

venerate what

is

old and traditional.

good.

What is

new

is

by

nature

suspect,

not proven

itself to be
people

Veneration

requires

the

passage of time.

As

time passes, the

become

increasingly
is

distant from the Constitution. Or,

creation

rather, they become

increasingly

distant from the

of

the

Constitution,
Time
to

thus

forgetting

that the Constitution

a product of their own making.

bestows

veneration

because time
goodness of

allows

the

people

to become

more attached

the principles and

creation.

the

Constitution,

and reflect

less

on the act of

Time

allows constitutional

founding

(the giving

of

law)

to

evolve

into

constitutionalism

(the

rule of

law).
stability"

But why does "the requisite ment, which in the post-classical

citizens

depend

"veneration?"

on

Free

govern

world means

limited government,
the

requires

the

to

acknowledge

the superiority
with

of

the

law,

highest in America

being

the Constitution. The

acknowledge

problem

self-government

made.8

the superiority of something

they

is getting the people to For if the Constitution is

52

Interpretation be taken
as the measurement
will that creates
answer

a product of their will, then their will can

for

what

is

right, and how then

does

one choose

between the it? The

the

Consti
that the

tution and the will that wants to

destroy
simply

is to

show

Constitution is

the

embodiment not

of self-government, or popular will,

but

good

government, that the Constitution rests upon a principle of

means

inherent how the

right.

This

that the goal

for Publius is

not so much

to

show

Constitution

accommodates public

opinion, but rather to shape

public opinion venerate

in

support of the not

Constitution. In

doing
but in

so, the people will come to

as good.

the

Constitution

only

as their own,

This

veneration will over

time

mold and shape popular opinion

support of

the Constitution:

If it be true
of opinion much on reason of

that all governments rest on opinion,

each

it is

no

less true that the

on

strength

in

individual,
man

and

its

practical

influence

his conduct, depend

the same opinion.

the number which man,

he

supposes to

have

entertained

The

like

himself is timid in
proportion

and cautious, when

left

alone;

and acquires

firmness

and confidence,

to the

number with which

ancient as well as

it is

associated.

When the examples,

are

which

fortify
effect.

opinion, are

numerous,

they

known to have

double

Opinion, then, is
problem with

strongest when supported recurrence

both

by

time and

numbers.

The

frequent

to the people is that

it detracts from the

tradition of the
revere

Constitution
solution

and therefore will

lower the

number of people who

it. The

to this problem, offered

emphasis on the republicanism of

the

by Publius, is to combine an Constitution, thus attracting the support

frequent
recurrence

of a

large

number of the

people, while preventing

to the

people

by

making the amendment process

difficult,

though not impossible.

In

doing

this the source of law becomes obscure over time, and the Constitution

appears more and more magnificent,

if

not somewhat

divine. (Cf. Plato's Laws,

to the defect in
self-

634d-e).

This

entire

discussion
For

of the need

for

"veneration"

points

republicanism. government

self-government

to be identical with good government,

would need

to be perfectly rational government. The people who

govern

themselves would need to

Publius,

this

could

only be

expected

be perfectly rational beings. According to in something as fantastic as Plato's doctrine

of philosopher-kings:

In

a nation of philosophers,
would

this consideration ought to be disregarded. A reverence

for the laws, But

a nation of
wished

be sufficiently inculcated by the voice of an enlightened reason. philosophers is as little to be expected as the philosophical race of

kings
its

for

by

Plato. And in every

other nation,

the most rational government

will not side.

find it

a superfluous

advantage, to have the prejudices of the community on

Constitutional Government
Here
ture:
of we see

and

Judicial Power
human

53
na

in Publius

a classical

"Enlightened

reason"

tells us

understanding of that in a "nation of

politics and

philosophers"

the reason

the law alone would

inculcate
are
p.

"reverence for the

laws."

(We

note that even

and

philosophers,

however,

in

need of

law. Cf. Strauss,

Philosophy

Law,
not

Eve Adler translation,

suffice.

39.) But for

ordinary, political men, reason will passion, the latter

Man

by

nature

is

a mixture of reason and

frustrating
pol

the former.

(See,

e.g., Aristotle's

Politics, 1287a25-33.) Human

affairs, i.e.

be entirely rational men can never become angels and thus man is by nature limited in his ability for self government. That is why we need time to bestow veneration on the Constitution, because however reasonable the

itics,

can never

law may be, even be it perfectly rational, the judgment of the less than rational. Or as Publius says, even "the most rational
not

people

is

always

government will on

find it

a superfluous

advantage, to have the prejudices of the community

must

its

side."

The Constitution

become the

object not

only

of our

reason, but

"prejudices."9

of our

The defect
ment, and

of

human

reason

is the defect
mere

of

the

republican
barriers,"

theory

of govern

is thus the

reason

but human legislation,

are

defect
must

of

human

reason

why nothing insufficient to remedy the republican problem. The is also the reason why at least one branch of government

"parchment

which are

be insulated to
the
people.

a considerable

degree from the changing, temperamental

the reasons why Publius opposes frequent

will of

This, however, does

recurrence to the people

not exhaust

for

constitutional questions.

"The danger
public

of

disturbing
questions,

the public

tranquility by interesting
of the whole
expense of

too strongly the

passions, is a still

more serious objection against a

frequent The

reference of constitutional passions of

to the

decision

society."

the people are provoked,

admits that

"tranquility,"

usually, at the

or stability.

Publius

during
for

the wave of state constitution-writing

during
But this

and

shortly

after the

Revolution,

reference was made, repeatedly, to the people, and without

ill

consequence

the stability

of the state governments.

was

due, Publius

explains, to the

fact that the

rare. nal

circumstances under which a common

those constitutions were written were

that

They

had

enemy,

England,

distracted them from their inter

differences:

We

are to recollect that all the

which repressed
confidence of

existing

constitutions were

formed in the

midst of a
en

danger

the passions most the people

unfriendly to

order and

concord; of an

thusiastic

in

their patriotic

leaders,

which stifled

the ordi

nary

diversity

of opinions on great national questions; of a universal ardor

produced

for

new

and opposite

forms,
abuses

by

a universal resentment and

indignation

against the

antient government; and whilst no spirit of party, connected with the changes to

be

made, or the
alist

to be reformed,

could mingle

its leven in the

operation.

(Feder

49,

p.

315)

54

Interpretation
constitutional crises that will require participation on the part of

The future

the

people will stem not from a common external enemy, but from internal divisions of opinions. Hence the passions of the people will not be united; they will be

directed
of

against one another.

Moreover,

we must

keep

in

mind

that the

Articles

Confederation

were written under

the same circumstances as the state consti

tutions,

with a view

to England as the common enemy, and

even the state constitutions were

they

turned out to
models of

be

dismal failure. And

1788

far from

good government: and

was at

most of

the corruption America was experiencing in

1787 [of

the state level.

Hence, Publius
are of

concludes, "the experiments

frequent

recourses

to the people]

too ticklish a nature to

be unnecessarily
that "the

multiplied."

Finally, Publius
sions which would
answer

states what

is "the

all,"

greatest objection of such appeals

deci

probably is that

result

from

[to the public],

would not

the purpose of maintaining the constitutional equilibrium of the govern

ment."

The

reason

a constitutional convention

is ill

suited

for the

purpose

of

judging

the merits of claims to power

between

governmental
most

branches. As
threatens the

Publius

explained

in Federalist 48, it is the legislature that

of the made

"constitutional

government."

equilibrium

"The

appeals

to the people
departments,"

therefore would usually

writes a

be

by

the executive and

judiciary

Publius. The
with

convention would

in the

end

trial,

the judicial and executive

branches
via

on one

be performing the function of side, the legislature on

trial?"

the other, and the people sitting as then raises the question,

judges

their elected delegates. Publius

equal advantages on

"Would

each side

enjoy

the

The

answer: with

No. The primary

reasons are

twofold:

First,

the legislature has more

sway

the people. Publius writes:

The
can

members of the executive and

judiciary departments,
only
the nature and

are

few in number,

and
mode

be personally known to from the

people

a small part

of the people.

The latter
of

by

the

of their appointment, as well removed

as,

by

permanency

it,

are too

far
are gen

to share much in their prepossessions.

administration

The former

erally the
other

objects of

jealousy: And their

is

always

liable to be discol

ored and rendered unpopular.

The

members of the

hand,

are numerous.

Their

connections of

blood,

They are of friendship

legislative department, on the distributed and dwell among the people at large.
and of

acquaintance, embrace a

great pro

portion of the most plies a personal

influential

part of the society. and

The
that

nature of their public trust

im
the

influence among the people,

they

are more

immediately
advan

confidential guardians of the rights and

liberties

of the people.

With these

tages, it for
a

can

hardly

be

supposed that the adverse

p.

party

would

have

an equal chance

favorable issue. (Federalist 49,

the legislators would

316)

Secondly,

most

likely
had

be

elected as the

delegates to

the

convention.

"The

same

influence

which

gained

[the

legislators]

an election

into the legislature, would gain them a seat in the In other words, they would be the judge in their own case: "The convention in short would be
convention."

Constitutional Government
composed

and

Judicial Power

55

chiefly

of

men, who

had been,

who

actually were,

or who expected

to

be,

members of the

department
very

whose conduct was arraigned. question

consequently be
to John
chap.

parties to the

to be

decided

by

them."

They would According

society

Locke,

that is the

definition

of the state of nature a regression

(Second Treatise, from

civil

2). Such

a convention would

actually be

back to the

state of nature.

The

problem

arising be

when

there are conflicts

of constitutional well.

interpretation
makes

points to the importance of judging, or conventions would

choosing

As Publius

clear,

called

only
to

under conditions of constitutional reach a

crisis, and

therefore cannot
manner.

be

relied upon

judgment in

a cool and well-reasoned of powers

such cases

Hence the

points

to an

arising from maintaining the separation independent judiciary whose job is to pass judgment in
problem
manner.

in

disinterested
separate

judiciary
the
called

maintenance

only keeping the from the legislative, but separating the will of the people from of the Constitution. Regardless of whether a convention was
also points

It

to the necessity

not

of

render could

occasionally due to crisis or periodically by plan, the decision it "never be expected to turn on the true merits of the
of the public to reason about such

would

question."

By
pre

questioning the ability

things, Publius 49
and

pares the rejection of the proposals considered

in

numbers

50.
the people

According
would still

to

Publius,
partisan

under

the most

favorable

circumstances

be too

to judge

properly:

[The decision

of the

people]

would

inevitably be

connected with the spirit of pre con com

existing parties,
munity.

or of parties

nected with persons of

springing out of the question itself. It would be distinguished character and extensive influence in the

It

would

be

pronounced

by

the

nents of the measures, to which the

very decision

men who

had been

agents

would relate.

(Federalist

in, 49, p. 317)

or oppo

The

objections

to frequent

or occasional conventions,

however,

go

far beyond

the simple

question of

how best to

settle constitutional questions.

What Publius

is here saying is that when the people themselves deliberate either en masse or at least most of the time via delegates they are not really governing them
selves.

The

people are

less inclined to deliberation

and rational reflection,

they

are not good at of

judging. Instead their

opinions are made

by

parties, or

"persons
(Perhaps "distin

distinguished
aspires

character and extensive

influence in the

comm

Publius

to be

such a

person?) And their

not

reliance on parties or

guished"

individuals itself is

Publius

concludes, and not

wholly "the reason, of the public,

to be
good

rational.

Hence it is "the

passions"

[that]

would sit

in

judg
pas

ment."

But for

government

it

must

be

rational.

It is "the

reason of

the public alone that ought to

sions ought

controul

and regulate

the

government.

The

to be

controuled and regulated political

by

the

is the
alone

central

thesis of the

science of

This arguably The Federalist: Republicanism

goodness of a government

govern

is

not

identical to

good government.

The

is

56

Interpretation
proportionate

directly

to

its

rationality.

In

a republic, where

the

people are

to

rule, it is their
consent must

reason that must government

"sit in

judgment."

It

means that government

by
as

be
in

by

enlightened

consent, and that those who consent

of wise

to

be

governed recognize the rule not says

number

necessarily

individuals

for

Publius
helm"

10, "[e]nlightened

statesmen will not always

be

at the

but

of wisdom simply.

The

challenge

is to

mix the republican principle with

the rule of reason. In a

republic, the greatest threat to the rule of reason

is the

passion of

"the

public

As Publius
the

asks
of

in

number

6,

"Are

not popular assemblies

frequently

subject

to

impulses

rage, resentment,

jealousy,
rule

avarice, and of other irregular and

must

propensities?"

violent ment.

The public, therefore,

be distanced from the

govern

Or rather,

reason must

do

so through government.

ultimately Hence government

the passion of the public, but must

controls the passions of

the peo

ple,

but is itself

controlled or ruled

by

the

reason of of

the public. This means that

while republican government

is "government is
not

the people,

by

the people, and

with

for

people,"

the

the government

identical to

or synonymous

"the

people."

In Federalist 63,

after a

discussion form

of numerous examples of ancient

governments that employed some

of representation,

true distinction between these and the American governments,

exclusion

Publius writes, "The lies in the total

share

of the people, in their

collective

capacity,

from any

in [Amer

ica],

and not

in the

total exclusion of the representatives of the people

[others]"

from the
Under "the

administration of the
Publius'

(Federalist 63,

p.

387. Emphasis

original).

Constitution, then,
of

we can speak of

"the American in

people"

and

government"

as two related, yet

ultimately

separate things. unprincipled

The "reason

the

public"

is

manifested not

but in

expressions of that will that are good and reasonable.

It is

manifest

majority will, in the

of

separation of powers,

because it

shows that

the public understands the limits

their own reason. And the separation of powers

is

crowned

by

the

judiciary,
from their

because it is the branch best

passion.

capable of

protecting the
the

public's reason

The Court does this

by defending

Constitution,

the manifestation

of the public's reason par excellence.

wise and rule

The Constitution is

what

is ultimately
that claim to

reasonable, and therefore entitled to rule.

Nevertheless,
can rule

is limited

it

must

be diluted: the
therefore the

people are

the original source of authority

for the
sent of

Constitution,
the

and

Constitution

only

with

the con

governed.10

The

foregoing
people

fore the
in

particular

discussion of the separation of reason from passion, and there from government, points toward an independent judiciary, and judicial review, to which we now turn our attention. Papers 78
The Federalist
expound the nature of
we will

through

83

of

judicial

power under the

Publius'

proposed constitution. memorable

But it is 78 that judicial

review.
us

focus

on, as it provides

defense

of

Publius begins 78

by

reminding

that in the earlier papers

he had already

Constitutional Government
explained

and

Judicial Power

57
says

the

"utility

and

necessity

of a

federal

judicature."

Furthermore,
disputed."

Publius, "it is

the less necessary to recapitulate the considerations there

abstract

urged"

because "the propriety of the institution in the recall, however, that in Federalist 22, the want
was said

is

not

We

of a national

judiciary

power

to "crown the

defects
effect

of the

Confederation."

Perhaps that

which repairs

the greatest

defect is in

the greatest asset?

composition of

There

are

two questions concerning the

the

Supreme Court:
which

(1)

the mode of appointing the

office.

justices,

and

(2)

the tenure

by

they

will

hold

In

a strange and sudden

"As to the

mode of

ing
two

the officers of

move, Publius simply dismisses appointing the judges: this is the same with that of appoint the Union in general, and has been so fully discussed in the
the
which would not

former:

repetition"

last numbers, that nothing can be said here (Federalist 78, p. 464). Moreover, he

be

useless
num

points

to "the last two

the "full
us

bers,"

i.e.,

numbers

on the mode of

77, concerning the executive, as appointing judges, but he fails to remind

and

76

discussion"

that

he

also

dis

cussed that subject

in 51. What
of the

we are

left

with

is the fact that in 78 Publius

ignore the
method

discusses the life tenure

justices but

opts to

by

which

they

are

appointed,

while

in 51 he defends the

method of appointed

judges,

saying
tions"

we need

"a

mode of choice which

asserts

best

secures"

the "peculiar qualifica

of

judges, but simply

the idea of

permanent tenure. elements of

It

seems as

though

Publius does

not want us

to consider these two

afraid that

the court at

the

same time.

Perhaps Publius is
the court?

if

we

do

we will see

plainly the

unrepublican nature of

78, then, concerns primarily the tenure of judges. Accord the to Constitution, "The Judges, both of the supreme and inferior Courts, ing (Art. Ill, sec. 1). Allowing judges shall hold their Offices during good
The
remainder of
Behavior" behavior"

to serve
modern

"during

good

is

"certainly

one of the most valuable of the

government

improvements in the improvement

of

practice of
"government,"

(Federalist 78,

p.

465). It

is

a modern

According
republic:

to
a

Publius, life-tenured judges improve

monarchy it is
a no
an excellent

"In

necessarily monarchy no less than a barrier to the despotism of the prince;

a encroachments and oppres

but it is

not

republican.

in

a republic

it is

less

excellent

barrier to the
principle of

body."

sions of the representative check against that and a

The

life-tenured judges is the best

body

in any

regime

that tends to accumulate the most power,

"it is the best

expedient which can

be devised in any government, to

laws."

secure

steady, upright, and

impartial

administration of

the

(Cf. Aristotle, Nico

machean

Ethics, 1134a35-b2.)
moves

Publius

quickly to

show

that a

judiciary

composed of other

during

good

behavior is

not a

dangerous threat to the

judges serving branches. Here we

see again the passage with which we

began, but

this time in full:

Whoever attentively

considers

the

different departments

of power must perceive,

that, in

a government
nature of

from the

they are separated from each other, its functions, will always be the least dangerous
in
which

the

judiciary,

to the political

58

Interpretation
rights of the

Constitution because it
not

will

be least in

capacity to annoy

or

injure

them.

The Executive

only dispenses the only

honors, but holds

but be

the sword of the com

munity.

The legislature

not

commands the purse,

citizen are to

prescribes the rules

by
on either

which the

duties has

and rights of no

every

regulated.

The judiciary,

the contrary,

influence

over either the sword or the purse; no

direction

of the strength or of the wealth of the society; and can take no active resolution
whatever.

It may truly be

said to

have

neither

FORCE

nor

WILL, but merely judg

ment;

and must

ultimately depend

upon the aid of

the executive arm even for the ef

ficacy
The

of

its judgments.

executive

and
and

legislature
the rules

combined possess
which

four

powers:

honors,

the

sword, the purse,

are to

by
to

the

duties

and rights of

every

citizen

be

regulated.

According
have
no

over which the courts power with regard

citizens.

Publius, it is only influence, implying that

honors
and
"purse"

the sword and the purse

the courts may

rights and

well

have
of

to

dispensing
the

regulating the
are

duties

Moreover,

"sword"

even

and again assures us the

we see

transformed into

"force"

"will,"

and we

of which

Publius

judiciary

has

neither. each

But if
of

look back to Federalist 51, has its have

Publius there saying that

branch

the national government

own

will, in
upon

fact,

the entire schemata of separa

"

tion of powers outlined in

each

51 is built
a will of

that premise:

it is

evident that
. .

department

should

its

own,"

in

order that

"[a]mbition
court

be

made even

to counteract

ambition."

this may be

an

Thus it is only understatement: for while the

empowered with
what

"force"

that the

lacks. But

court

has

no means of physi

cal

enforcement, it certainly is
the next paragraph the

begins

by

saying that
some
of

legal force. In fact, Publius he has just described is the "sim

"simple"

matter,"

ple view of

thus suggesting that his

claim of

the judicia

ry's

weakness

may

conceal

its potential, though

in

perhaps

indirect,

power.

Although the

court

may from time to time

misjudge

particular

cases, and
a serious remains

therefore violate the rights of particular

individuals, it
so

can never

be

threat to the "general

liberty
the

of

the

people"

long

as

"the

judiciary

truly distinct from both

Montesquieu
as an

legislative

executive."

and

Publius then

appeals to

erty, if the power

of

authority for his opinion: "For I agree that 'there is no lib judging be not separated from the legislative and executive

powers.'"

Publius

seems to use

Montesquieu

to

defend the idea

that one of the

court should

reasons the court and will

is

weak and need not

be feared is because the

be kept entirely distinct from the executive and legislative branches. Interestingly, however, Publius had used the same quotation from Montesquieu back in
taken
number

47. There Publius

said that

Montesquieu's

rule should not

be

literally:

From these facts

by

which

Montesquieu

was guided

it may clearly be inferred, that

and executive powers are

in saying "there can be no united in the same person,

liberty where or body of

the

legislative
or

magistrates,"

"if the

power of

judging

be

Constitutional Government
not separated

and

Judicial Power
not mean

59

from the legislative

power,"

and executive

he did

that these

departments
each other.

ought

to have no partial agency

His meaning,
the example

lustrated

by

whole power of one

as his own words and still more conclusively as il in his eye, can amount to no more than this, that where the department is exercised by the same hands which possess the

in, or import,

no controul over the acts of

whole power of another

tion,

are subverted.

(Federalist

department, the fundamental 47, pp. 302-3)

principles of a

free

constitu

In

number

only fore it may be permissible to let the coordinate branches have "partial in the acts of each other. Upon this premise, the court could have some authority
over

a threat when one

47 Publius interprets Montesquieu very loosely: shared power is branch controls all the power of another branch; there
agency"

the acts of the other

branches,

such as

judicial review,

and could then

be

possessed of considerable power. rhetorical points with

But in

number

78, Publius is trying

and

to score

those who

fear the judiciary,

he therefore

emphasizes

by emphasizing its independence. Publius goes on to best way of maintaining the independence of the judiciary, and therefore preventing it from becoming a powerful threat, is the permanent tenure
the weakness of the court

say that the

of

for

its judges. In this way it is much less likely the court will have an incentive collusion with the legislature. Publius concludes the paragraph under discus

sion

by

citadel

saying the judiciary, composed of judges of the public justice and the public
next connects

with permanent

tenure, is "the
with

security."

Publius
notion of a

the "complete independence of the

courts"

the

"limited

constitution."

Strangely, he defines
bill
of

limited

constitution

as

"one

which contains certain specified exceptions as

to the

legislative authority;
ex post facto given

such

for instance
like."

that it shall pass no

attainder, no

laws,

and the

This definition is different than the definition

government was understood

in

number

41,

where a

limited

to

be

a government of enumer

ated and regard to

limited

powers.

But in 78 it

seems as though the

legislature,
power

without

Article I, in

section

of the

Constitution, has

a general grant of

power,

but

with certain

exceptions.

The

exceptions

to the legislative

"can be

preserved

practice no other

way than through the

all acts

medium of

the courts of

justice;
of

whose

duty

it

must

be to declare

contrary to the

manifest

tenor

void."

the

constitution question whether

Publius takes up the

the court

is

superior to the

legislature
"Some

due to the ability

of the

former to

strike

down the

acts of the
of

latter. This discus

the
courts:

sion will take place,

however, in

terms of the

"rights"

perplexity because contrary to the Constitution, has

respecting the rights of the courts to pronounce

arisen

legislative

acts void,

from

an

imagination that the In

doctrine
the

would

imply
a

superiority
of the

of the

judiciary
justice."

to the legislative
review
now

power.

previous paragraph review

(quoted above),
"courts

where

judicial

is introduced, ju
review

dicial

is

duty

of

But

judicial

is

described

as a right of the

judiciary.

By

putting these statements

together,

one

60
can
and

Interpretation
say that the nature of the court, or the function duties together. The power of judicial review is
of
of

the court, brings rights

a right
right

stemming from the

duty
be

the

court

to uphold what is right

what

is

being

manifestly the be
preferred

Constitution. If the Constitution is simply an no duty to defend it: Why is the arbitrary
to the
a

expression of will of

will, then there can

the people to

arbitrary

will of

the judge?

Why

should the

judge,

or anyone
worth?

else, have

duty
a

or obligation

to respect that which

has

no

intrinsic

But if the

Constitution is have have

grounded

in something

intrinsically

right, we as moral
and

beings
judges

duty

to respect the conditions of the

Constitution,
that

in

particular

a moral

duty

to protect it.

Publius

wants

to

remove

the

"perplexity"

has

arisen

because
a

of an

"imagination that the doctrine [of judicial review]

the

would

judiciary

to the legislative

power."

This

requires a

imply superiority of "brief discussion of the

grounds on which

it

rests."

There is

no position which

depends

on clearer principles, than that

every

act of a

delegated authority, contrary cised, is void. No legislative

to the tenor of the commission under which

act therefore

it is

exer
valid.

contrary to the

Constitution

can

be

Contrary
in

to a general grant of

legislative power,
of the

restricted

exceptions,"

legislative

power

is

"delegated."

now understood as
"commission"

only by "specified The legislature

particular

is bound

by

the

"tenor"

granted

by

the public

via

the Constitution. The public is the source of

legislative

authority.

However,

in Federalist 49, they are not an effective check on legislative abuse. Furthermore, Publius points out that the legislature cannot be the "constitutional
as we saw

judges

powers"

of their own

because it

would violate
will

the "natural
of

presumption"

that the representatives can

"substitute their

to that

constituents

their

But it is
will of

not

the will of the constituents qua will that makes it superior to the

the legislature.

Publius

understands the will of the people

in light

of their
"
. .

intention;
other

and their original or

fundamental intention is
ought to

the

Constitution:

in

words, the

Constitution
intention

be

preferred to

the statute, the intention

independent branch, then, whose job is judging, can check legislative abuse. This suggests that the doctrine of judicial review is inherent in the idea of a limited constitution.

of the people to the

of their

agents."

Only

an

But the

court should

defend

the

Constitution

not

by

the people.

The Constitution is

more than will.

merely because it is willed As was shown in the discus

sion of number
reasonable.

49,

the

Constitution is the

embodiment of right
and reasonable

because it is
treated as
rea

Throughout The Federalist, interchangeable The Constitution

terms.12

right

are

should

be defended because it is

best way of protecting the Constitution from an encroaching legislature; therefore judicial review embodies right reasonjudicial review represents the reasonable and good will of the
of

sonable; and the power

judicial

review

is

the

public.

Constitutional Government

and

Judicial Power

61

It may be said that to understand fully the argument of Federalist 78, one must read it in light of number 49. Publius says in 78 that the power of judicial
review

does

not

"by

legislative
understand with

power."

any means suppose a superiority On its own terms, and that is the way
statement

of

the judicial to the

modern conservatives

judicial review, that

is

untrue.

If

"superiority"

is identified
can exercise as well:

power, then the court is superior to the

review.

legislature insofar

as

it

judicial

This

problem plagues

the next sentence

by

Publius

It only
will of ple

supposes that the power of the people

is

superior to

both;

and that where the

the

legislature declared in its statutes,

stands

in be

opposition to that of the peo governed

declared in the constitution, the judges

ought to

by

the

latter,

rather

than the former.

rather

They

ought to regulate their

decisions

by

the

fundamental laws,
p.

than

by

those which are not

fundamental. (Federalist 78,

468)
both."

Judicial

review

"supposes that the

or

power of

the people is superior to

But why is the power, legislature? Why

of the people?

will, of the people superior to that of the court the judges (or the

or

the

"ought"

Why
the

are the

laws
are

willed not?

legislators) by the people

be

governed

by

the will
while

"fundamental,"

those willed

by

legislature

These

questions cannot

be

answered

without recourse to

ultimately

point

something higher than the Constitution. These questions to nature, to what is inherently rightful and reasonable. Publius in
on
number

does
able,

not given an account

78

as to

why the Constitution is

reason

and

therefore, based

78 alone, these

questions remain unanswerable.

But,
a

again, if one looks back to

49,

we see that the

Constitution

embodies right

reasoning.

The Constitution is reasonable,

and above all

and the proof

separation

is in the fact that it is

limited constitution, human

in the

an

independent judiciary. To know

of
reason.

what reason

of powers crowned with is means to know the nature, or

and separates power

limits,

The Constitution limits

because

of those

limits. This

was the argument of number

manifest will of

49,

therewith

explaining why

"ought"

the Constitution as the

the

public

to govern as supreme

law.
As Publius
also explained

in

number

49,

the danger in referring to the public

of the public to
closest of the

for

constitutional questions

is the tendency

be

guided more

by
its

passion

than

reason.

As the legislature is

three

branches to the legislature

turbulent tides of public opinion, then, it seems

motives will
will

reasonable

to assume that

be

grounded more

in

passion

than reason, that acts of the

tend to

be

more willful than rightful. on

Publius builds
some rational
"conspire"

this

argument as

he

proceeds

in

number

78: If there

exists

ground that order

two conflicting laws share,

reason and

law

should

in

to

reconcile

the differences. But more often than not, such

may not be present in statutory law. Thus when two acts of ordinary legislation conflict, it may be an inappropriate rule of construc tion to judge them by their reasonableness:
common rational ground

62

Interpretation
The
rule which

has

obtained

in the

courts

for

determining

their relative

validity is

that the

last in

order of

time shall

be

preferred to the

first. But this is

mere rule of

construction, the thing.

not

derived from any

positive

law, but from

the nature and reason of

Perhaps it
reason

would

be

more accurate

in the "nature

thing"

and reason of

the

for Publius to say it is the absence of that dictates the rule of preferring
to another, except that the

the most recent

law. That is, judge

as expressions of will, there exists no principle

upon which one can

one

law

as superior

last
the

in time is the

most recent expression of

the will of the legislature: It

is "reason

able, that between the

interfering
should

acts of an equal

authority, that

which was

last indication But it is

able.
when

of

its will,

have the

preference."

there exists a conflict between a statutory law and the

Constitution,

a conflict of

something less reasonable with something manifestly reason This accounts for the reversal of the rule of constitutional construction in
78:

number

But in

regard

to the

interfering

acts of a superior and subordinate nature and reason of the

authority, of an
con

original and

derivative power, the

to

thing indicate the

verse of that rule as proper

perior ought

to be followed.

They

teach us that the prior act of a su

be

preferred

to the subsequent act of an inferior and subordinate

whenever a particular statute contravenes

authority; and

that, accordingly, be the

the Consti

tution, it
gard the

will

duty

of the

judicial tribunals to

adhere to the

latter,

and

disre

former.

Publius
of

again assumes the argument of

49. He
and

says

"the

reason

nature and

the conflict

between the Constitution

of the

ordinary legislation
superior."

implicitly
it
would

points to the

superiority be redundant for Publius to say "the prior act of a ipso facto be superior. The same applies to his invocation
of an
and understood

former. If time

confers superiority, then

What is
"the

prior would

of

subsequent act
"inferior"

inferior

and subordinate

"Subsequent"

authority";
of the

would

imply

"subordinate."

The

nature and reason

conflict,

however,

must

be

in light

of the reasonableness of

the

Constitution. Nature

and reason

come together

in the Constitution. The Constitution

embodies reason, and the

precepts of reason are eternal and order to

unchanging; therefore
rational

be

good

law,

must

begin from the

basis

upon which

future legislation, in the Consti

Constitution is rational, then any law that deviates from the Constitution is proportionately less rational. Legislation that subtracts from the rationality of the Constitution contradicts the "manifest of the Constitution. When it does, the court has a reasonable duty to strike down
principles of the
tenor"

tution rests. If the

such

law

as

violating the
to

Constitution,

which

is in turn in the

service of reason.
which

According
is is
rational
rational

Publius,

the superior law is that which is rational. That

was the good

is the Constitution. As is
also prior.

As

part of

the act

fortune in America, that which of founding, the Constitution precedes

Constitutional Government
in time
nal all subsequent and

and

Judicial Power

63

law,

and although the source of

we saw

derivative statutory law. The Constitution is the origi its authority is the people, it is given to us identifies
the

by

Publius. As

above, Publius

Constitution

with

the

will

of the

people, but distinct from the will of the legislature. The public is the the

source of

first law,

which

is

a good and reasonable

law, but

the

legislature

by exercising judicial review, defends not only the Constitution, but that which is oldest. In a sense, then, we can say the court defends tradition. Thus judicial review ultimately promotes
source of all subsequent
"veneration"

is the

law. The court,

of

the

Constitution,
corrective

which, according to number

rule of

49, is necessary
judicial

for the
review

"stability"

required

for the

law. It

could

be

said that

is the necessary
powers of

to the arbitrary

rule of passion.

The

people can choose

to live under a constitution, and

they
to

can choose to

limit the
that

the government formed

by

that constitution. But the

ought choose.

fact

they

can choose

implies

a standard of

how they
nature.

That is,

in choosing their government, the people selves is endowed with the same freedom
rights or

must recognize that each one of them

by

The

recognition of

the equal

in

each

individual

sets

the limit to

what the government can

legitimately

do. James Madison

explains this

rightfully succinctly in his essay "On

Sovereignty,"

The first

supposition

is,

that each

individual

others, the compact

consent of

which

is to
.
.

make them one

every individual.
. .

But

as

previously independent of the society must result from the free the objects in view could not be attained, if

being

every measure further supposes

whole.
. . .

required
. .

the consent of every

will of

member of

the society, the

theory
the

that the

the majority was to

be deemed the lex

majoris

will of

Whatever be the hypothesis

of the origin of the

parties,

it is

evident that

it

operates as a

plenary

substitute of the will of the

majority

of the soci

ety for the will of the whole society; and that the sovereignty of the society as vested in and exercisable by the majority, may do anything that could be rightfully

done
als

by

the

unanimous concurrence of

the members; the reserved rights of

parties to

individu

(of

conscience

for example) in
reach

becoming

the

original compact

being

beyond

the legitimate

of sovereignty, whenever vested or

however

viewed.

(Emphasis

added.)13

The function
points

of

just

government points above

review reflects

beyond

mere willfulness:

it

to

nature.

Judicial

the

limited capacity

of man to govern

himself. It is
as the

rare that man wills

for himself
once

a government as rational and good

American Constitution. And

he does, he is

likely

to

deviate from

that

goodness man

Thus
with

an

by passing laws that contradict the rational principles of its origin. demonstrates his ability to reason above all by choosing a constitution independent judiciary, and he allows that judiciary the full power of by
granting
justice
permanent

judicial

review

tenure to judges:

If then the

courts of

are

to be considered as the bulwarks of a limited consti

tution against

legislative

encroachments, this consideration will afford a

strong

argu-

64

Interpretation
ment

for the

permanent

tenure of judicial offices,

spirit

since

nothing

will contribute so

much as this

to that independent

in the judges,

which must

be

essential to

the

faithful

performance of so arduous a

duty. (Cf. Plato's Laws, 657b, 875d.)

Publius

gives two other reasons

humors"

in
of

support of permanent

tenure

for judges: have

(1)

to guard against the "ill the

those

who seek

to undermine the princi

ples of

Constitution; (2)

to insure the appointment of men "who will

judges."

sufficient skill

in the laws to qualify them for the

stations of supplement

While the

latter is certainly worthy of discussion, especially its I shall conclude with a brief mention of the former,
political problems with which

to

number

51,

as

it

points to the current

I began the

paper.

Publius

warns us

that "the rights of

which

individuals"

are endangered

"from the

effects of those
seminate mean

ill humours
people

the arts of

designing
. .
.

men

sometimes

dis
the

among the

themselves,

and which

have

tendency in

time to occasion
of

dangerous innovations in the government,

community."

and serious

oppressions

the minor party in the

seriously the itself is built

humored,"

principle upon a

that ideas have consequences.

set of

Here Publius takes very Indeed, the Constitution

those ideas

definite

ideas. But

when

become "ill
question

the possibility of constitutional government itself

a serious

becomes

able.

Moreover, destructive ideas become

threat to

freedom

when

prop

agated
men

by "designing
p.

men,"

or, as Publius refers to them elsewhere,

pointed out

"visionary"

(Federalist 6,

56). As Publius
reason,

earlier, the public is moved

to

more often

by

passion than

and

in

particular a passionate attachment

men of

influence. Yet the

public

is

responsible

turn will pass

posed

laws that
public

will

in

part shape

for electing legislators who in future public opinion. The challenge Plato's Republic: The
public

to the

is

similar to the problem of

will not possess enough

the wisdom of a statesman,

but they
word

must nonetheless possess

wisdom, or the

kind

of wisdom, that will enable them to

we note

differentiate
appears

statesmen

from

swindlers.

Here

the

"demagogue"

twice in The Federalist: numbers 1 and

85,

the first and last of the

papers.

only It

may be

said that

self-government,

as presented

in The Federalist, is
individuals"

literally
which

surrounded

by

the problem of

demagoguery.
to "the rights of
are

The ideas

most

threatening
rights.

those

deny

individuals have

If the legislative
with

body
such

is

able

to

"qualify
"have

their
more
of,"

attempts"

to undermine the

Constitution

ideas, it

will

the character of our governments than but few may be aware because eventually these ideas will "disseminate among the people
upon

influence

themselves"

(Federalist 78,

p.

470).
the editors of First Things

Earlier I

quoted

States

could ever

become Nazi Germany. And

questioning whether the United while America is not now a Nazi

here."

correctly state that "it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be It is happening
regime, the editors

Constitutional Government
"blind
hubris"

and

Judicial Power

65

because,

as

scure,"

and we can never

rational principles of

Churchill said, "the future, though imminent, is ob know for certain if the people's adherence to the
will remain steadfast.

the

Constitution

Indeed, it looks

as

if it may In order to
not.

remain

free

we must remain

firm in

our

devotion to the

rational

principles of

the Constitution and

Lincoln

wrote
. .

in
.

letter to be

Declaration, principles rooted in Henry Pierce, those principles "today,

oppression."

nature. and

As
all

in

coming days
of

shall

a rebuke and a stumbling-block

and rational
and

re-appearing tyranny foundation of the law

and

to the very harbingers Without those principles, the moral

are

dissolved. In the introduction to The

City
to

Man, Leo Strauss

itself in

put

it this

way:

"[A]

society

which was accustomed

understand without

terms of universal purpose, cannot

bewildered."

lose faith in that

purpose

becoming
with

completely
universal principle of

Strauss identifies that "universal

as understood

purpose"

the

human equality
and self

by

the

American Founders. He begins Natural Right

ration of

History by
Creator

quoting the Decla

Independence: "We hold these truths to be

equal, that

evident, that all men

with certain unalien
Happiness."

are created able

they

are endowed

by

their

rights, that among these are

points out

Life, Liberty,
this

and

the pursuit of

Strauss
no

that "the

nation

dedicated to this He then

proposition

has

now

become,
and

doubt partly

as

a consequence of

dedication,
at

the most

powerful

earth."

prosperous of the nations of the

asks a question

a paraphrase,

actually, of the

challenge put

forth

by

Lincoln
nation

Gettysburg

that all Ameri

cans should ask themselves:

"Does this

faith in
self

which
"

it

was conceived and raised?

in its maturity still cherish the Does it still hold those 'truths to be in

evident?'

Abraham Lincoln
opinion.

said

in

an

1856 speech, "Our

opinion,

government rests

public

Whoever

can change public

can change

the government, prac

much."14

tically just so no more important

ples that animate of public opinion. on

If

our government rests

in

public

opinion, then there is

object of our opinions

"veneration"

than the Constitution and the princi the Constitution requires the support

it. The

of

Lincoln followed his

observation

by

saying, "Public opinion,

radiate.

any subject, always has a central idea, from which all its minor thoughts That central idea in our political opinion, at the beginning was, and until
men."

recently has continued to be, the equality of human equality, implying as it does individual
nature
writes

The

self-evident

truth of

natural

rights,

is the basis in As Publius

and

for the

reasonableness

and

goodness

of

the Constitution.

in Federalist 78,
to the

the Constitution serves

rights of
.
.

justice

by

its "inflexible

individuals."

uniform adherence

Human

nature provides the

telos of the
sic

Constitution,

and

the

natural phenomena of

to the

politic

science of
such as

The Federalist. It is

human equality is intrin moral truth that infuses a influence is

political

document
opinion

the Constitution

with goodness.

Public

is

always shaped

in

part

by

"elites."

Today
law

that

greater than ever.

The

professoriat of our universities and

schools shape the

66

Interpretation future lawyers, judges,

politicians, and those Publius called "per

opinions of our sons of

distinguished

character and extensive

influence in the

commu

But

the reigning

doctrine in those institutions is legal

moral relativism. natural

Thus

we see of

dis
the

tinguished jurists such as Judge Bork reject the

law foundation

Constitution in favor
according to from its
collapses comes
moral
"passions."

of

positivism and unqualified majoritarianism.

"reason"

But

relativism, the

of

the public is

indistinguishable
be

On

such

premises, the political science of The Federalist

good government and mob rule

because the distinction between

nothing but preference or prejudice. What was the moral purpose of government for Publius, and the final cause for the Constitution as defended in The Federalist, becomes
meaningless.

According
with

to

Bork,

the moral principles of the

Declaration

are

incompatible
con
judgments,"

the positive,

procedural structure of

the Constitution. The

Constitution

cerns which

only means, not ends. For Bork ends are nothing but "value by definition are irrational and subjective. 'There is no way to decide

these questions [of competing

of moral or ethical
we

'values']
a

other than

by

reference

to some system

imperatives

about which people can and vote and

...

do disagree. Because

disagree,
This

we put such raises the

well?

issues to

the majority morality pre

vails."

question,

however, if

ends are

purely subjective, why

not

the means as

And if

all value choices are

value preference of a

majority It is difficult to imagine any

as we

superior

equally arbitrary, why is the to the minority? or to any individual?

or wrote

position more alien to the

who wrote and ratified the original

Constitution,

understanding of those its greatest defense in

point of

The Federalist. For,

have demonstrated, the theoretical high

of

The

Federalist,
passion,
a

number

49,

relies upon the natural

distinction between

reason and

distinction intrinsic to the idea

human

nature as a normative stan

dard. Moreover, the

comes an which
seem can
"values"

Constitution, drained of its moral and rational content, be empty vessel. The question then becomes a matter of deciding with to fill it: liberal or conservative? But qua both sides
"values,"

to agree there is no rational ground available upon which such questions

upon

be decided. Based

jurisprudence

of original

Judge Bork's position, there is intent over that of a "living

no reason

to

prefer

constitution."

against

the judicial activism of the

given

left, legal

positivists such as

In arguing Bork have un

that modern social science would "give advice with equal com except for the fact alacrity to tyrants as well as to free that "it prefers God knows generous liberalism to only If why all moral judgments are relative to time or place or culture, and are therefore
writes petence and
peoples,"

wittingly Strauss

it its

most sophisticated

defense.

consistency.

ultimately arbitrary, there is no reason to prefer freedom over tyranny, much less constitutionalism over arbitrary rule, and thus no reason why not to give consistent advice to tyrants as well as democrats, or perhaps instead of demo crats. It is this relativism which poses the biggest threat we face today. The
courts are not a

threat to the

liberty

of

Americans. Rather,

moral relativism

has

Constitutional Government
attacked and

and

Judicial Power
and

67
the

jeopardized the
upon them.

principles of our

Constitution,
so under

therefore

all

institutions built
science.

And it has done

the authority of modern

The

corruption of the
our

judiciary

is only
to

one symptom of a much more

or weaken the rests.

serious

disease. Thus

job today is
we are

not

destroy
freedom

Court, but
the

to articulate the moral truths upon which our

moral

We

must repair of

fabric

of

America if

to recover the rational

basis

law. And

this means we must challenge the relativism and historicism entrenched in our
universities and public offices.

We

must

build

the principles of
amount of time.

freedom,

and that can

be
we

maintained appoint

majority party that will defend in office for a considerable judges

who
will

Only

then can the

uphold

the

Constitution in
of

and restore the proper separation of powers.

The job before

us

is

neither constitutional nor need of a

legal, but manifestly one of public philosophy. We are of the conditions of freedom, and philosophy scholarship in support
until

that philosophy,

such

philosophy becomes

what

Lincoln

called

"the

nation."

political religion of the

NOTES

siter

1. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, (New York: Penguin, 1961), p. 465. Hereafter cited as Federalist.

ed.

Clinton

Ros-

Spence

2. Mitchell Muncy, ed., The End of Democracy? The Judicial Usurpation of Politics (Dallas: Publishing Company, 1997). 3. See Robert Bork,

Slouching

Towards Gomorrah: Modern Liberalism 15. See also,

pp.

and

American Decline

(New York: Regan

Books, 1996),
judicial
written

p.

knows the

power of

review

is

not

96-122, 318-19. Assuming that Judge Bork explicitly granted in the Constitution, it seems odd that
review."

he blames both "our

that judicial
review

Constitution

and the power of judicial

Does Bork
As

mean to

say
see,
and

is implicit to Publius

a proper

this is the

argument

makes

understanding in The Federalist. But if Bork is

of a written constitution?
against

we shall

judicial review,

judicial

review

is implicit in

a written constitution,

does it follow that Bork is

against a written

constitution?

cipled majoritarianism or some other

And if this is the case, is he ultimately against constitutionalism, form of arbitrary rule?
and

as opposed

to unprin

4. "Tradition
reprinted

Morality in Constitutional
and

Law,"

lecture

at

the American

Enterprise Institute,

D. O'Brien, eds., Views from the Bench: The Judiciary and Constitu tional Politics (Chatham, NJ: Chatham House Publishers, 1985). In arguing that the Constitution does not rest upon any general theory, and that the courts are too antimajoritarian, Bork unwittingly

in M. Cannon

aligns

himself

with

the arguments of Charles Beard in his 1913

book. An Economic Interpretation

influential books in the

of the Constitution of the United

ment of

States, arguably

one of the most

develop

Progressive thought. Of course, thirty years after publishing his Economic Interpretation, Beard published The Republic, in which he greatly modified many of his earlier opinions and ac

knowledged
natural

that the

theory

of

individual

natural

rights

was a central

feature

of the original

Constitu

tion. If Bork continues his Beardian train of thought,

perhaps

he too

will come

to acknowledge the

rights theory

that dominated the political thought of the American Founding.

5. For Intent 1994). 6. I

a thorough

discussion

of

the

moral relativism of

contemporary
see

conservative

jurispru

dence, including
and the

that of Bork and Chief Justice William

the

Rehnquist,

Harry

V. Jaffa, Original

Framers of

Constitution: A Disputed Question (Washington:

Regnery Gateway,

wish

here to

ies

and seminars on

acknowledge my debt to Professor Charles Kesler for his insightful commentar The Federalist. To the best of my knowledge, he is the first Federalist scholar

68

Interpretation
number

to challenge the interpretation that

10 is the

Federalist. That interpretation

of the

was

first

given

by

key to understanding the full argument of The Charles Beard to support his quasi-marxist critique
Beard,
such as

Constitution. Later
although

scholars who argued against

Martin Diamond

and

Douglass

Adair,

number

10.

disagreeing with Beard's conclusions, continued to emphasize the centrality of See, e.g., Saving the Revolution: The Federalist Papers and The American Founding,
Republicanism,''

Charles Kesler, ed. (New York: The Free Press, 1987), especially Kesler's Introduction and Chapter Classics," pp. 13-39; and "The Founders and the 1, "Federalist 10 and American in The American Founding: Essays
nard
on the

Formation of

the

Constitution, J. Jackson Barlow. Leo Press, 1988),

pp.

W. Levy,

and

Ken Masugi,

eds.

(New York: Greenwood

57-90.

7. See, e.g., Herbert Storing, ed., The Anti-Federalist: Writings tution (Chicago: University of Chicago Press, 1985). 8. Intrinsic to
political obligation.

by

the

Opponents of the Consti

modern republicanism

is the

theological-political problem, or the problem of

was

In the

ancient polis the

fundamental law

divine law. Both law he

and

lawgiver
the law

higher than citizens, and there was no question because it was God's law. This, I believe, is Strauss's
were
who

of political obligation: one obeyed

point when praises

"above

all others

have it

made us see the

city

as

it primarily

understood

Fustel de Coulanges, itself as distinguished

from the
this light
of

manner

in

which

was exhibited

by

classical political philosophy: the

holy

city in

contra

distinction to the
ancient

city"

natural

(The

City

and

Man [Chicago: Rand McNally, 1964],

city.

pp.

240-41.) In
As the

Christianity

Israel was typical of any ancient in the Roman Empire followed the
new states came

One

could also argue that the establishment

on a universal scale.

same each

logic, but only

empire

crumbled,

into existence,

Christianity
obligation.

remained

the religion of the

Western

world.

claiming the allegiance of its citizens, yet And thus was born a problem unknown to
two

the ancient city: the earthly city and the

heavenly

city

now represented

This

problem would

be the

source of religious wars where nature

for
-as

a millennium and a
represented

competing sources of half. It would in the idea

of

remain unsolved until the

American

Founding,

human

provided the rational ground not only for civil but also religious liberty. equality and natural rights See Harry V. Jaffa, The American Founding as the Best Regime: The Bonding of Civil and Religious

Liberty (Claremont,
support of the

CA: Claremont Institute, 1990).

"Lyceum'

9. Cf. Abraham Lincoln's

speech of so and

1838: "As the

patriots of seventy-six

did to the

Declaration
pledge

every American
to violate the

Independence, his life, his property,

of
reverence

to the support of the Constitution and

Laws, let
that

his

sacred

honor;

let every

man remember

law, is

to trample on the blood of his

father,

and to tear

the character of his own, and

by every American mother, to the let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and
children's

his

liberty. Let

for the laws, be breathed

lisping babe,

that prattles on her

lap

the gay, of all sexes and

pp.

tongues, and colors and conditions, sacrifice unceasingly upon its 10. Cf. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965), 140-42.
11

altars."

In the Declaration
when

of

Independence it is
do
so.

not

only the

right

but the

duty

of a people

to

resist

tyranny
be
no

it is

prudent to

This is

a rejection of the precepts of modern political philoso

phy, especially that of Hobbes. In Hobbes what

"duty"

is highest is self-preservation, therefore

there can

something higher, because there is nothing higher than life itself. Also absent in Hobbes is the idea of "honor," because honor implies some standard of good ness above mere life. The Declaration, however, ends with the signers pledging their "lives, fortunes,
honor."

to sacrifice oneself for

and sacred
Governors."

See

also the

1776

sermon of

Samuel West, "On

the

Right to Rebel in the

against

12. Thomas Aquinas defines

natural

law

as the rational creature's participation

eternal

law, by

which

God

governs the universe.

According

to

Aquinas,

that which

is

reasonable

is right.

Summa Theologica, Query 93, Article 2. 13. James Madison, "On Sovereignty" (1835). Madison introduces the foregoing discussion on sovereignty as follows: "To go to the bottom of the subject, let us consult the which contem

Theory

plates a certain number of

individuals

as

meeting

and

agreeing to form

one political

society, in

Constitutional Government
order

and

Judicial Power

69
He

that the

rights

the

concludes

by

stating:

safety & the interest of each may be under the safeguard of the "Of all free government, compact is the basis and the essence.
.
.

whole."

According
the pre

to Russell tended

Kirk,

neither

Madison

nor

Hamilton looked to "such

artificial constructions as

Social
pp.

1993),

The Politics of Prudence (Bryn Mawr, PA: Intercollegiate Studies Institute, 45-46. Recall also the comment of Bork, that "[o]ur constitutional liberties do not
...

Contract."

theory,"

rest upon

cited above. any general 14. Abraham Lincoln, Portion of Speech

at

Republican Banquet in Chicago, Illinois, December

10, 1856.
15. Robert Bork, The Free Press, 1990),
p.

Tempting

of America: The Political Seduction of the Law (New York:

259.

Book Reviews

A Cornucopia

of

Rousseau Translations

Charles E. Butter worth

University

of Maryland

1.

The Collected Writings of Rousseau, Kelly:

ed.

Roger D. Masters

and

Christopher

Volume 1, Rousseau, Judge of Jean- Jacques: Dialogues, ed. Roger D. Masters and Christopher Kelly; trans. Judith R. Bush, Christopher

Kelly,
of

and

Roger D. Masters (Hanover

xxxi +

and

London:

University

Press

277 pp., $45.00. Volume 2, Discourse on the Sciences and Arts (First Discourse) and Polemics, ed. Roger D. Masters and Christopher Kelly; trans. Judith R.

New England, 1990),

Bush, Christopher Kelly,

and

Roger D. Masters (Hanover

xxvi +

and

London:

University

Press

of

New England, 1992),

233 pp., $50.00.

Volume 3, Discourse

on the Origins of Inequality (Second Discourse), Polemics, and Political Economy, ed. Roger D. Masters and Christo pher Kelly; trans. Judith R. Bush, Roger D. Masters, Christopher Kelly,

and

Terence Marshall (Hanover

xxviii +

and

London:

University
most

Press

of

New

England, 1992),
a

212 pp., $50.00.

on the

Volume 4, Social Contract, Discourse

Virtue

necessary for

Hero, Political Fragments,

and
and of

Masters

Geneva Manuscript, ed. Roger D. Christopher Kelly; trans. Judith R. Bush, Roger D. Mas
and

ters,
Press

Christopher

Kelly

(Hanover
xxvii +

and

London: The

University

New England, 1994),

276 pp., $45.00.

Volume 5, The Confessions and Correspondence, including the Letters to Malesherbes, ed. Christopher Kelly, Roger D. Masters, and Peter

Stillman;
Press
of

trans.

Christopher

Kelly

(Hanover

and

London:

University
who

New England, 1995),

or the
at

xxxvi +

700 pp., $75.00.

Volume 6, Julie
a small

New Heloise, Letters of Two Lovers

live in
Jean

Town

the Foot of the

and

Alps,

trans.

Philip
of

Stewart

and

Vache (Hanover
xxxi +

London:

University

Press

New England, 1997),

2.

728 pp., $75.00 cloth, $25.00 paper. Cambridge Texts in the History of Political Thought:

Rousseau, The Discourses

trans.

other early Political Cambridge (Cambridge: Victor Gourevitch

and

Writings,

ed.

and

University Press,

1997), liii

437 pp., $14.95 Paper.

interpretation, Fall

1999, Vol. 27, No. 1

72

Interpretation

Rousseau, The Social Contract

and trans.

and

other

later Political Writings,

ed.

Victor Gourevitch (Cambridge: Cambridge

+

University Press,

1997), liv

341 pp., $12.95 Paper. had

to so many excellent transla

Never before have English

tions
of

readers

access

the provocative, all too

tantalizing

writings of Jean- Jacques

Rousseau,
the

that elusive, at times even reclusive, citizen of

world of

Geneva

who so confounded

letters

of

his

day

and continues to stimulate

ful
and

students of politics even today.

In

addition

discussion among thought to the eight volumes listed above

the three additional volumes of the Collected Writings

in

various stages of

preparation,

there are Allan Bloom's excellent translations of the Letter to

published under

M. d'Alembert

Arts, Letter to M. University Press, 1960) and Emile or on Education (New York: Basic Books, 1979), as well as Alice W. Harvey's translation of the sequel to Emile, namely, Emile et Sophie ou les Solitaires, published as "Jean- Jacques Rousseau's Emile and Sophie, or Solitary in the volume edited by Pamela Grande Jensen, Finding a New Femi
the title
and the

Politics

d'Alembert

on the

Theatre (Ithaca, NY: Cornell

Beings,"

nism:

Rethinking

the

Woman Question for Liberal

Democracy (Lanham,

MD:

Rowman & Littlefield Publishers, 1996), pp. 193-235. Still, as proof that the gifts we receive here below are never free of some adulteration, it happens that
an

overlap or in three of the That overlap

on

duplication
duplication

of effort occurs with respect

to the texts published

volumes.

volumes of the

Collected Writings

and

Gourevitch's two

or

enth volume of

destined to continue, for the announced sev the Collected Writings contains a new translation of the Essay
seems published

the

Origin of Languages first

by Gourevitch

in 1986

and repub

lished here in the

Writings.

volumes entitled

The Discourses

and other

early Political

Why

such

duplication has

of effort

has

occurred

is difficult to fathom,
translations

since

neither of

the parties

chosen to contrast either set of

with the

other or vaunt

the merits of the one

is just

as well,

by pointing to defects in the other. And that for links between the translators in shared premises about the
Rousseau's

principles and goals of translation and even about the significance of

teaching
Both text,

are so numerous that such

juxtapositions

would

be difficult to draw.

sets of

translations strive for and achieve

the principle of
eloquence

fidelity

to Rousseau's original

adhere to

translating key
for
which

terms uniformly, and seek to

was

capture

in English the

Rousseau

famed.

They

differ

as

to words from time to time and more

frequently

with respect

to sentence struc

ture, but in have left done

no case can one

translation be judged so incoherent

a void the other was obliged to

fill. None
the

of

the

or wrong as to Masters and Kelly

re

translations redone

by

Gourevitch

and none of

Gourevitch translations

Kelly is in any manner comparable to the simply in adequate Barbara Foxley translation of the Emile that Allan Bloom's version replaces or the equally faulty William Kenrick translation of the Julie that has
and

by

Masters

Book Reviews
now

73

been

replaced

by

the new

Philip

Stewart

and

Jean Vache translation. (Nor,

the

let it be noted, does the

that work
most

new electronic revision of

Foxley

translation

save

from its deserved reputation.) Leaving aside, then, a question that can likely not be answered, let us focus instead on the general characteristics
translations in
order

of each set of

to highlight their shared

features

as well as

their

distinct

qualities.

At the

rate of almost one volume

year, Roger Masters and Christopher

have been publishing excellent translations of Jean-Jacques Rousseau's extensive writings. Volume 7, which contains Rousseau's Essay on the Origin

Kelly
of

Languages, as noted above, as well as his writings related to music along with some by Grimm, Raynal, and Rameau in the same vein, is about to appear; and volume 8, with the writings on botany, the Reveries of the Solitary Walker,
and

the Letter to M. de Franquieres is in

preparation.

ninth plays

volume and

will

contain

Rousseau's Letters from

in

the

Mountain

plus

his

diverse

writings about the theater. writings

a chronological

Clearly,

these volumes
plan

do

not present

Rousseau's

order; rather, the

of

followed

by

the editors in

publishing these translations is that

to common subjects and themes.

grouping Rousseau's

writings

according

In
above

addition to

its

overall

quality, the

all,

by

its

extent and uniform

and

undertaking is set apart, despite thoroughness, being a group effort

Masters-Kelly

both in the editing

the translation of texts. Each volume is a perfect example

should

of what a translation

be.

Having

settled upon a

precise and nuanced

technical vocabulary

at

the outset, the editors

have adamantly insisted

on adher

ing

to that vocabulary in

subsequent volumes.

Especially

commendable

is

that

they do so not only for their own translations, but also for those of others invited to contribute translations of particular works. Consequently, clarity and
consistency reign throughout the series. The volumes are carefully and thoroughly
cumbersome or pedantic. annotated without notes

being

The

notes serve

to

identify

persons, places, works, and

incidents

alluded to

in the text

as well as to

sophical allusions and sometimes plicated arguments.

rather

to

shed

clarify literary, political, or philo light on particularly obscure or com

In short, they

help

the reader

follow Rousseau's exposition,

the editors or translators.

than

bear

undue witness

to the

erudition of

Great
of

care

has

also

been

taken to make these

books
is

attractive: a

different engraving The

Rousseau
the text

sits opposite the

title

page of each

volume, and the general layout of

volumes them

large font 23.5

and wide margins

usual without

most appealing.

selves are also

larger than

being

unwieldy, 634

by

9'/2 inches

or

15.5

by

centimeters.

Other

special

features

of the series

include

righthand pages

to indicate the corresponding

pages

running head at the top of the in the now generally ac

cepted

standard

French text for Rousseau's Oeuvres Completes, namely, the

74

Interpretation
edition published

Pleiade
been

by

Gallimard or,
other

when a particular editions of

printed

in that work, to

trustworthy

writing has not Rousseau's writings

and correspondence.

Moreover,

each

volume contains

a concise

introduction

that explains the place of the writings it contains within Rousseau's own thought
and

literary

career. of

There is

also a

volume

1, it is

Rousseau's life

and

chronology at the head of each volume; in in each succeeding volume of the works

presented there.

Finally,

each volume

has

an

index for

names of

persons, places,

and works cited as well as of

key

terms developed in the text.

The first

volume

in the

series presents a work never

work

before translated into

English,
cise,
and

the

famous

autobiographical

Rousseau Judge of Jean-Jacques:

clear, pre

Dialogues. It is

an excellent

translation of a very difficult writing

style.

faithful to Rousseau's

In the second, third,

and

fourth volumes,

revised versions of writings

Discourse

on

originally translated by Judith R. Bush such as the the Sciences and Arts, the Discourse on the Origins of Inequality Social Contract
albeit

(1964),

and the

(1978)
fuller

are presented

lated complementary,

lesser known,

writings

along with newly trans by Rousseau or his con

and

temporary
Discourse

critics that provide a

picture of

Rousseau's thought
volume

the
the

consternation to which
on

his

writings gave rise.

and

Thus,

2, containing

it along Arts, many with Rousseau's replies to them, among which is the Preface to his play Narcis sus. The next, volume 3, containing the Discourse on the Origins of Inequality, does the same; that is, it presents a revision on the basis of new material of
the
presents of the attacks upon

Sciences

Judith R. Bush's translation Discourse

and

of that

famous Discourse,
Discourse
on

plus criticisms of the

Rousseau's

replies

to them. Also to be found

here

are

"Three

Fragments from

Early

Versions

of the

Inequality,"

of which more

later; Rousseau's famous letter

Voltaire's
poem

to Voltaire in defense of God occasioned

at

by
on

about the earthquake

Lisbon, along
on

with

Voltaire's brief
article

reply; another exchange

natural

between the two; Diderot's Encyclopedia

volume as

right; and,

finally, Rousseau's Discourse

Encyclopedia

Political Economy, first

natural right essay.

published addition
volume a

in the

same

Diderot's

In

to the Social Contract and its original version, the

contains the provocative

Discourse

on the

Geneva Manuscript, Virtue most necessary for

Hero

and

two

fragments
of

not

dom"

and

"Comparison
Political

found in the Pleiade text, "Fragments on Free Socrates and plus a series of short essays
Cato,"

known

as the

Fragments,

most of

these translated into English for the

first

time.
undergirds this whole series.

Thorough, but unassuming, scholarship

adhering to
a uniform

While
have

vocabulary in
texts

all

of

the

translations, the

editors

compared the

Pleiade

or other

with

the manuscripts of

Rousseau's

writings

wherever possible and also

have had

recourse to new critical editions of particu

lar

works.

Nowhere is

new

translations of the

comprise volume

painstaking scholarship more evident than in the Confessions along with the Letters to Malesherbes that 5, both due to Christopher Kelly, and also in that of the Julie

such

Book Reviews
or the

75

New Heloise in
present

volume

effected

by Philip
in

Stewart

and

Jean Vache. Both

volumes

carefully

controlled texts

elegant and

impeccably

faithful

translations

along

with pertinent notes.

The latter contains, moreover, the twelve

by Hubert-Francois Bourguignon, known as Gravelot, that Rousseau wished to have accompany his text. (As it happened, they were printed separately with inscriptions indicating where they were to be placed in the
text

illustrations drawn

but that is

another

issue.) Volume 3 is

also

something

of a

way it draws
man

upon

Heinrich Meier's

justly

acclaimed critical edition and

novelty in the Ger

translation of the French text of the Discourse on the Origins of Inequality

(see Diskurs iiber die Ungleichheit [Paderborn: Schoningh,

correct

1984]) in

order to

the Pleiade text and to add a section entitled "Three

of the

Fragments from
clearly indicate
provide

Early Versions
where

Discourse

Inequality."

on

The

editors

these

fragments

belong

with respect

to the Discourse and thus

the reader

dependent

upon

translations a rare glimpse

into

the

way Rousseau's

text evolved through various

drafts.

Victor

Gourevitch'

s
carried out

undertaking is
a single

no

less impressive. Indeed, insofar

perhaps

as

it

has been

by

individual, it may

be

considered more

astounding. were

Some

parts of

the volume on Rousseau's early political writings

originally published over a dozen years ago under the title The First and Second Discourses, together with the Replies to Critics and Essay on the Origin of Languages (New York: Harper & Row, 1986).
revised

They have

been

reviewed and

for this edition,

and

the

volume

has been

enhanced with new translations

important early writings by Rousseau: the letter to Voltaire God against the implications in Voltaire's poem about the earthquake
of three and

defending
at

Lisbon,
and also

essay

entitled

"Idea

of

the Method in the Composition of a

Book,"

the "Discourse on the Virtue a Hero most

sented

needs."

All

of the translations pre

in the

volume on

Rousseau's later

political writings are new:

the "Dis

course on

Political

Economy,"

the Social Contract along

a reconstruction of the

with some selections

from the Geneva Manuscript,

War,"

fragment "The State

and a

of

the Considerations

on

the Government of

Poland,

few

selected

letters. Gourevitch is
an

eminently thoughtful

and conscientious

translator,

a man

who appreciates the nuance of

particular words while

respecting the need

for in

consistency in

terminology.

To

apprise the

reader of

how he

will proceed

these translations, Gourevitch

and

draws

attention

to Rousseau's

advice

to

his friend

patroness, Mme d'Epinay, that

she will

have to learn his dictionary. This is

necessary, says

Rousseau, because "my terms rarely have their usual (see Gourevitch, The Discourses, p. xliv; and The Social Contract,
on

mean

p.

xliv).

Building
To

that advice, Gourevitch then goes on to explain what

he

makes of

Rousseau's

dictionary
the
reader

or vocabulary, word compare

by

word.

help

the translation to the French

text, Gourevitch

76

Interpretation
at the

indicates

beginning

of each

writing

where

it is to be found in the Pleiade

standard text. references to

In addition, he

numbers

the paragraphs of each work to

facilitate

it. Given Gourevitch's

stated scruples about

respecting Rousseau's

punctuation, such that

in

each

he hesitates to break up Rousseau's sentences (see p. xliii one must infer that he would consequently never deign to volume),
any
of

restructure
vide

Rousseau's

paragraphs.

Hence the

numbered paragraphs pro

a marvelous tool

for

locating

corresponding

passages within the

French
them to

works.

Gourevitch is equally
which

circumspect about

annotations,

limiting

the purpose of

identifying "persons,
Rousseau

events, texts or passages, and sometimes

to."

doctrines
notes

mentions or alludes

Although he
what

admits to

occasionally to "call attention to parallels

writings,"

with

[Rousseau]

says

using in

other
and

he insists that

texts"

"they

remain at or near

the surface of the

p.

"do

interpret"

not analyze or
p. xliv).

(see The Discourses,

xliii; and The

Social

Contract,
For

each volume,

Gourevitch has
the arguments

a general account of and

introduction setting forth Rousseau advances in the writings to follow

composed a short

explaining, in an equally general manner, the significance of

Rousseau's

broader teaching.

Differently

stated,

Gourevitch has issues

prefaced

his

volumes with

short essays that serve to

introduce the

reader to the contents of the volume and

raised

that prepare the reader to explore the

in those

writings

without

resolving seau's life

also

or

explaining away those prefatory

issues beforehand. A chronology

on the relevant

of

Rous

and a short

bibliographic essay
material

form

part of the

to each volume.

secondary literature In this essay, Gourevitch

demonstrates his
scholarship.

deep familiarity

with, and

Finally,

each volume

gentlemanly appreciation of, Rousseau has two indices. One refers to citations of the

editors, translators, and annotators of Rousseau's writings. The other, a general

index,

refers

to persons and ideas or subjects cited in the volume.

These font

volumes are smaller

in format than those in the Collected Writings

or

series, measuring 5V4

the
and margins are

by

8Vi inches

13.75

by

21.5

centimeters. still

Consequently,
read.

are

correspondingly smaller, but

easy to

Al
of

though

they

the marvelous

attractively printed and presented, neither volume has any illustrations that grace the Masters-Kelly volumes.
to translations of writings not
volumes

In

addition

found in the Masters

contain

and

Kelly
of

Collected Writings, these two

several writings published ume on absent

by Gourevitch
of

translations

in

volumes

2-4

that series.

Specifically,

the vol
writings
of

Rousseau's early political writings presents translations of two from the Collected Writings, that of the "Essay on the Origin
and of the

Lan
of

guages"

writing

entitled

"Idea

of

the

Method in later

the

Composition
2
and

Book,"

as well as

translations

of material

found in

volumes

of the

Masters-Kelly

series,

while the volume on

the
the

political writings presents

translations of three writings not

found in
the

Collected Writings,

that of the

fragment "The State

land,

and of

Considerations of the Government of Po four letters from Rousseau to selected individuals, in addition to
of of

War,"

Book Reviews
translations of material

11

found in

volumes

and

of

that

series.

The differences

between

what

has been

published

in

each collection seem

to stem, above all,

from the diverse

Masters
order,
and

goals of

the two sets of translators and editors. That

not

is,

while

Kelly

decided

to publish Rousseau's writings in a chronological

but to group them according to subjects and themes, Gourevitch, as is patent from the titles of his two volumes, has focused on writings concerned with politics
while

limiting
his

himself to
is less

particular

time frames. In this sense, but only in this

sense,

endeavor

comprehensive than that of

Masters

and

Kelly.

Here, then,

are the

differences between Gourevitch 's two

volumes

and the

corresponding volumes of Masters and Kelly. In volume 2 of the Collected Writings are to be found, in addition to the translation of the Discourse on
the

Sciences

and

Arts,

translations

of

the writings of those criticizing it and of

Rousseau's replies,
volume on

including

the Preface to

the early political writings presents, along with

on

his play Narcissus. Gourevitch's his translation of the

Discourse

the

Sciences

and

Arts,

translations only of Rousseau's replies to

the critics of the Discourse as well as the Preface to the Narcissus.

Similarly, in
of the

the Collected

Writings,

volume

3, Masters

and

Kelly
on

publish

their translation of the Discourse on the Origins of Inequality, plus a translation

"Three Fragments from

Early Versions

of the

Discourse

Inequality"

alluded to above

along

with translations of

the

letters from Rousseau's

attack on

critics

concerning the
of

Discourse, including
replies.

Voltaire's wickedly witty

it,

and

Rousseau's

They

also publish their

translations of the exchange be

tween Rousseau and Voltaire on the latter's poem about the earthquake at
of

Lis

Diderot's essay on natural right for the Encyclopedia, and of Rousseau's bon, Discourse on Political Economy that was first published in the same Encyclope

dia

volume as

Diderot's

article.

Consonant

with

his focus here

on

Rousseau's

and publishes in this volume the early political writings, Gourevitch translates Discourse on the Origins of Inequality, but only Rousseau's replies to two crit ics other than Voltaire, namely, M. Philopolis and Charles-Georges Le Roy.

Still,

as noted above,

it

also

contains

Gourevitch's translation

of

Rousseau's

letter to Voltaire protesting the implications of the Lisbon poem and translations of three other writings: one is an essay not found in the Masters-Kelly Collected Writings, namely, the "Idea of the Method in the Composition of a
Book,"

another the

"Essay
7,

on the

Origin

Languages"

of

to be published in their
on the

forth
most

coming

volume

and yet another the

published

"Discourse

Virtue

Hero

needs"

translated and

in

volume

of their series.
series

That fourth
entire

volume

in the

Masters-Kelly
Contract,
and

includes translations

of

the

first

version of

the Social

the Geneva
not

Manuscript,

and of the

Social Contract itself

Cato,"

as well as of two
Freedom"

fragments

found in the Pleiade text,

namely, the "Fragment on

plus a series of short essays

the "Comparison of
as the

Socrates

and

known

Political Fragments.

Goure-

78

Interpretation
later
political writings

vitch's volume on the

contains, in addition to

his

transla
volume

tion of the "Discourse on Political

Economy"

(see Masters

and

Kelly,

3),
the

a translation of

the Social Contract

along

with

that of some selections

from

Geneva Manuscript,
War"

and translations
well

of a reconstruction of the
on

fragment

"The State Poland

and

of

as

as

of the

Considerations

the

Government of
presents

and of

letters

by

Rousseau to Messieurs d'Offreville, Usteri, Mirabeau,

whereas volume

de Franquieres. Thus,

of the

Collected Writings
addition to

a translation of the complete

Geneva Manuscript in
Freedom"

translations of
of

the two essays the "Fragment on

Cato,"

and the

"Comparison

Socrates
of

and
War,"

this
of

volume

of

Gourevitch
on

presents translations of

"The State

the Considerations

the
can

letters

by

Rousseau. Perhaps this

Government of Poland, and of the four be expressed more clearly in outline form:
Masters & Kelly, Collected Writings, vol. 2
Discourse
on the

Gourevitch, Early Political Writings

Discourse
on

the

Sciences

and

Arts

Sciences

and

Arts

Replies to

criticisms

Criticisms,

plus

Rousseau's

replies

Masters & Kelly, Collected Writings, vol. 3 Discourse

on

the

Origins of Inequality

Discourse

on

the

"Three Fragments from

of the

Origins of Inequality Early Versions

Inequality''

Discourse
plus

on

Replies to

some critics re

Criticisms,
earthquake
and

Rousseau's
re

replies

Letter to Voltaire

Lisbon

Letter to Voltaire

Lisbon

earthquake

Voltaire's reply Diderot, "Essay on Natural

Right"

"Essay
"Idea

on

the

Origin

Languages"

of

[to

appear

in
on

vol.

7, forthcoming]

[See Later Political

of the
Book"

Writings]

Discourse

Political

Economy

Method in the Composi

the Virtue a Hero most

tion of a

"Discourse

on

[See Collected Works,

vol.

4]

needs"

Gourevitch, Later Political Writings

Masters & Kelly, Collected Writings, "Fragment on

Freedom"

vol.

"Comparison
Discourse
on

of

Socrates

Cato"

and

Political Fragments
Political

Economy
Social Contract

Social Contract Geneva Manuscript,

"The State
War"

selections

Geneva Manuscript,

entire

of on the

Considerations
land

Government of Po

Letters to Messieurs

d'Offreville, Usteri,
de Franquieres

Mirabeau,

and

Book Reviews
In sum, the Gourevitch
cal

79

volumes provide a

fuller sampling

of

Rousseau's
he

politi

writings, albeit one that abstracts

controversial political

from

the criticism to which

was sub
with

jected for his

some of

ideas. While presenting that

writings, the

criticism

along

Rousseau's

Masters-Kelly

volumes offer a more

limited sampling of those political writings. The extensive overlap between these two efforts is both are so far superior to what existed previously
translators acknowledge in their

baffling
and

precisely because because both sets of

footnotes and, in

the case of

Gourevitch, intro
Yet,
apart
and

ductory
and the

essays that

they

are aware of each other's

translations.

from
Arts

the replies to the critics with respect to the Discourse on the

Sciences

Discourse

on

the

Origins of Inequality,

all of

the writings translated

by

Gourevitch in his two

subsequently to those of Masters and Kelly. As has already been noted, his translations of the Discourse on the Sciences and Arts, Discourse on the Origins of Inequality, Letter to Voltaire,
volumes were published

"Discourse

on the

Virtue

Hero

needs,"

most

Discourse

on

Political Economy, substantially

Social Contract,

and even parts of

the Geneva Manuscript

neither

differ from,
it be

nor

improve upon, theirs. Likewise, in

no appreciable respect can

claimed

that their translations of the replies to the critics of the two Dis
or

courses

differ from,

improve upon, his. Although in

more readable

most cases

Gourevitch's

Masters-Kelly series, this greater readability comes at the price of his versions being slightly freer than theirs. Still, rather than stumble around the gift horses proffered by these fine scholars any longer, it seems more fitting to express heartfelt gratitude to
translations are slightly them for providing translations that
such an abundance of the citizen of

than those in the

Geneva's

writings

in

are so excellent and

readily

accessible.

Nature, History,
On Pierre
Manent'

and
s

the Human Individual:

Modern

Liberty

and

Its Discontents

Peter Augustine Lawler

Berry College
Pierre Manent is
one of

the most outstanding students of

edited collection of the

political

philosophy
recent

writing today. This expertly

essays provides a most

French

scholar's

personal, engaging, and witty introduction to the depth

explains the

and
of

distinctiveness
work

of

his thought. Here Manent

his

from An Intellectual

History

of Liberalism to The

guiding intention City of Man, his

and and

latest

and most ambitious

book. He

makes clear what

of our

he learned

how he Martin in

dissents from the two

Heidegger. He
adds

greatest

thinkers

century, Leo Strauss

of

to the brilliant interpretation

Tocqueville he

presented

Tocqueville

and the

embodiment of

Nature of Democracy. He defends the nation as the modern political life in several ways, most notably in a moving tribute
also

to the

hero Charles De Gaulle, but both liberalism

and

in

an appreciation of the

liberalism

of

his teacher, Raymond Aron,

opposition to
nal and provocative

and an analysis of the origins of

totalitarianism in

the nation. He also elaborates in a most origi

way the relationships

among philosophy,

political

life,

and

His church, tipping his hat to two other thinkers who shared these loves, Charles Peguy and the unjustly neglected Aurel Kolnai. The book is introduced by Daniel J. Mahoney's lucid, measured, and perceptive account

God

and

three

Manent'

of

s accomplishments as a whole.

Because
self

here to

Mahoney has already written such a distinguishing Manent from Strauss.

Strauss
and as an

fine overview, I
I
want

will

limit my
as an

to

show

him both

able student of

independent thinker. Aron introduced him to

the origins of modern liberalism and

its totalitarian

alternative

in Machiavellian

ism. To
advised

keep

him from
read

him to

being immersed in twentieth-century polemics, Aron Strauss's book on Machiavelli.

read

Manent learned how to

Machiavelli,

and modern philosophers read

generally,

from Strauss,
ences

and

he learned how important it is to

understand our world and our experience of

being

carefully in coming to human. Modern man experi

himself

as an

individual,

as the

being

with rights.

That understanding
who wrote to

was

a creation of modern philosophers

from Machiavelli onward,

free

man

from both

nature and

God. Modern philosophy, for Manent, has been the

partly

successful effort

to change man, and he

learned from Strauss

and

Aristotle

Edited

and translated

by

Daniel J.

Mahoney

Mahoney

(Lanham, MD: Rowman

and

and Paul Seaton, with an introduction by Daniel J. Littlefield, 1998), 237 pp., $58.00 cloth, $22.95 paper.

interpretation, Fall

1999, Vol. 27, No. 1

82

Interpretation
such change with

how to judge
worse.

detachment. Man has become both better

or

and

It is

good to

be

human individual,
of
or

to be

more

free than be
at

merely dis

political animal.

But the development

individuality
human

might

the expense
without

humanity. The wholly free tinctively human experiences

of

disconnected individual

would

be

and so without

content.

For Manent, the

an

human individual is

a mixture of

diverse qualities,

or not

simply

individual.

Manent views Strauss and Heidegger as presenting the two best, and funda mentally incompatible, interpretations of the modern, philosophic attempt to use reason and will to master nature and displace God. According to Heidegger, the large itself
extent of

the success of this effort at transformation means that man is

a

fundamentally
changes.

historical being. His has

a

being

changes over

time,

and so

Being

changes or

history. Strauss holds that nothing fundamental, in truth, despite the modern best efforts, remains a natural Man,
philosophers

philosophers'

being. Those
attempt

delude themselves in

a moralistic nature.

fashion

when

they

to transform instead of comprehend human

Being

and

human

being
untrue

successfully resist manipulation. The being with rights is based on the doctrine of the apolitical and asocial state of nature. That being, in fact, from fullness
of actual

is

abstracted

human experience,

and

the modern philoso

phers

have

never succeeded and will always

beings have

in making that mental construction real. Human be political animals and never liberated individuals.

For Strauss, the authority of history is a misanthropic illusion. The strength of the Straussian position is dispassionately presented
nent

by

Ma

in two

of

the pieces too

in this book. The first

or

explains that

Strauss

criticizes

Nietzsche for

being

Christian

biblical, for preferring morality

to philoso

phy, which, to

preferring practice to philosophy. Nietz sche, in the decisive sense, followed the lead of the homo religiosus Pascal. The
same as

be clear, is the

attempt to conquer nature and replace religion

sion,"

links

"intelligence"

with

"deci

as

do the Christians. And

morality

so

in the decisive

sense

Nietzsche

means to
of

replace one religion or

with another.

For Strauss, the

inability

the

historicist thinkers to

overcome

Christianity

becomes
of

even more clear

in Hei
and

degger,

who views

human beings in terms

The "rational

conscience, anguish, guilt,

"being

toward

death."

animal"

or philosopher who

to nature is serenely

free from it is

such miserable experiences and

lives according so is able to view

criticism of

the world and himself theoretically.

modern atheism

According

to

Manent, Strauss's

is

that

not atheistic or anti-Christian enough.

Strauss's task,

ironically, is really
theoretical

influence

to achieve the allegedly modem goal of overcoming the of biblical morality. the theoretical apprehension of Only

the truth about nature can overcome

sion.

fear

of

death

and

the gods and moral illu that the reader

Manent
that

presents the crux of

Strauss's

effort so well

barely

notices cannot
sial.

he pointedly does not affirm its success. Students of Strauss also but notice that Manent's interpretation of Strauss's project is controver
sees

Manent

Strauss

as more closed

to the possible truth of revelation or

Pascalian psychology than Nietzsche.

Book Reviews
Strauss's
retical.

83

claim

Manent
without

adds

for the overcoming of Christianity, I that, for Strauss, 'The only way
morally, of overcoming the
of the
with

must of

emphasize, is theo
capable of
all

life

living

morally
of

thinking

'human,

too

human,'

according to nature, is that Socratic The combines moral action

living

Socrates"

philosopher, of

(p. 207).

thought undistorted

by

moralism.

So

he

combines praise of the practice of

ness of

biblical morality with theoretical aware its limitations. Strauss's practical conservatism is opposed to the various
Nietzschean
or

forms
moral of

of

seemingly

anti-Christian atheism that aim to surmount

illusion in the

name of probity.

theory

and practice,

from his
what

natural view,

The Straussian recovery of the separation is what allows the philosopher to

appreciates the greatness of on

appreciate

morality for
the

it is. Manent

Strauss's
wonders

recovery
whether

of

moral-political

horizon

largely
is

its

own

terms, but he

he

finally

does justice to
Straussian
and

all of the

human

longing

for freedom.
in Allan Bloom's

Manent's Love
seau
and

second

presentation

of the argument

Friendship. Love
some mixture of

friendship

are not, as the and

says,

irony, illusion,

radically modern Rous deception. Human eros is finally

the

desire for knowledge

Bloom's
severe

and self-understanding, and that natural

of

desire "is

not

in

vain."

it is

understood"

capable of

being

teaching is "that life is worthy being (p. 165). Manent, again, presents

loved because
this Straus

sian conclusion without comment, of

leaving
or

us

to

wonder about

the

impersonality
The

its

severity.

For the Augustinian

Pascalian Christians

as well as the mod

erns, what is human is free from nature

modern project,

and so contingent and mysterious.

from

one perspective,

is to

make what

is human

controllable what

and so understandable, makes

but

at

the expense of love. For the

Christians,

human beings lovable is

being

made

in God's image
modern

or

being

connected,

through grace, with

supernatural mystery.

The

thinkers follow the

often cannot

Chris decide

tians

in connecting love with mystery, whether the mystery is merely an illusion

with of

although

they

or an error to

be

eradicated.

But they

differ

the Christians in opposing themselves, in the name of reason, to the

mystery
mystery.

love

and

in their

confidence

that reason can abolish or

domesticate
seems

Bloom's

connection

between

loving

and

humane, but does it really do justice

or

to the love of

more understanding human for one another, being

to

man's

love for God? And does it God

to
could

attribute

to the philosopher personal

knowledge
Manent

that only
causes us

have? Bloom's seemingly Straussian

can

wonder whether

or classi

cal view of wisdom attack of

and

human

longing

St. Augustine
the

and

Pascal. He

shows

really in The

survive

the psychological
case

City

of Man how the

the way
on

for
in

grace and

supernatural undermined nature and paved

for

history

belief in way that does not depend on

of the

grace.

It does depend

the psycho

logical accuracy
Aristotelian

Christian

virtue of

virtue of magnanimity.

humility as at least a corrective to the Surely it is a virtue to acknowledge one's

and so to affirm an

limitations least
as

and

dependence

on others,

equality that is

at

fundamental

as undeniable natural

differences. The

modern rebellion

84

Interpretation both
nature and

against

grace, in Manent's view, originates both in the strength

of criticisms of grace perspective of grace.

from the

perspective of nature and

of nature

from the be

In the Christian-Aristotelian world, Manent explains, the human

being

longed to

two societies, the natural

city

and the supernatural church, each of

which seemed repressive

in light

of the other.

Because

neither

society

seemed

capable of

human
was

defeating being from society

free individual,
with

the other,

human liberation The

seemed

to require

freeing

the

altogether.

result of

that "effort of

abstraction

the

who

is dependent
dependence

on neither nature nor

God. But his

dissatisfaction

his

natural

was revealed

to him

or at

least im historical
to

measurably heightened by Christianity. Manent reports that "only accident could have obliged us to dismiss Aristotle and given us invent the
will"

a reason

notion of

the sovereign
came

(p. 102). And

as a result of that

inven

tion the human

being
about

to view himself as a historical

being,

and so an

inexplicable
as

accident

from

nature's perspective.

Manent says,

the modern rebellion against nature. It

There is something unnatural, is evidence, as the

Christians say,

that the human being really is not a merely natural being. Modern philosophy, like philosophy generally, aims to deliver human beings from the thrall of the idea of God. The idea of nature had delivered human

beings from fear

of punitive gods.

Any divinity

who remained was

indifferent

to human affairs. But that natural criticism cannot touch the supernatural God
of

the Bible. Its

discrediting
And
so

of pagan religion,

in fact,

paved the

way for the had to be

criticism

Christian
authority

alternative.

Machiavelli

could not use nature

to undermine the

of the

Christian God. His

effective criticism of

Christianity

a criticism of natural or pagan of paganism

had to

owe

philosophy something to Augustine's

of

and politics as well, and

his

criticism of natural theology.

The

"intersection"

constant

the

Christian

and

Machiavellian

critiques of na
of natural

ture and their

limited but

real

success

are evidence of the

limits

purposes and satisfactions

for human beings.

well

Strauss, Manent

complains, does

in

describing
why

how

man attempted

to

free himself from nature, but he is unclear away from philosophy's origination in the
seems to understand that movement as

on

philosophers got so carried

discovery of nature. Sometimes he mostly an intensely hostile revolt against

understands

Christianity, but
tianity
for
not

on other occasions

he

it

with no mention of

Chris

and makes

it

clear that the

philosophers'

modern world

is

no seculariza

tion of Christianity. Yet he criticizes modern or historical philosophy,

finally,

separating itself from biblical morality. Strauss fails, in Manent's eyes, to explain clearly the relationship between Christianity and history. More impor
tantly, he is
to grace and
unable to

incorporate

all

the

human

experiences attributed

by

some

history in his understanding of nature. Manent's own work understands "the condition
with

of modern

man, in accor
and

dance

triangularization that takes seriously the ancient, modern,

Christian

poles."

The Christian

part of this

triangle allows

Manent "to

escape

Book Reviews
from the
while

85

alternatives of

Straussian

'naturalism'

and

Heideggerian
history"

'historicism,'

preserving the

phenomenon of nature and that of

(p. 213). But

an oxymo

does

not

the phenomenon of

history

depend

on

human

nature

being

ron, on the

distinction between
are right

nonhuman nature and

human history? Manent's Strauss

be
and

preservation of the phenomena

is based

on

the observation that both

Heidegger
the

partly

in

what

they

observe about the modern condition,

but

perspective nor

by

which

he

understands

that observation

can

neither

Strauss's

Heidegger's. Manent is

not clear or

forthcoming

enough on what

that alternative perspective is.

but seriously as seriously Manent says he agrees with Strauss in rejecting the secularization thesis, be cause it understands or modern Christianity as having existed for

He does say it comes from taking Christianity truth, as a persistent modern influence, or both?

liberty,

and so as no

longer

relevant and never true.

democracy Taking Christianity

seri

ously, for

Manent,

seems to mean

considering the possibility that the greatest

Christian thinkers, such as Augustine or Pascal, may have taught the truth. Naturalism and historicism are both anti-Christian and atheistic doctrines. In Manent's view, neither reflects completely what we modern men really know:
could say that modern men have a knowledge of human nature that is invincible to any form of historicism and that we have an experience of history that is invincible to any Strauss and Heidegger have not been
antihistoricism."

"One

faithful "to the

nature and

equilibrium of

this

uncertainty"

(p. 42). The

invincibility

of

both
and

history

and so our

inability

to answer reasonably,

faithfully,

precisely the question What is man? is the foundation of our authentic experi ence of the human individual. It is also the foundation of Manent's belief that

both

political

life

and

Christianity

have

some sort of

future. life
and the need

With his Christian

affirmation of the goodness of political

regard their political of

human

beings have to

extremism

community as sacred, Manent rejects the Augustine and Pascal. And he writes of the political

history
modern

of

religion,

and of the

intertwining

of the

fate

of religion and of

the

modern movement toward

democracy. Manent finds

even

the most

discerning

author, Alexis de

writes of the naturalness of religious

Americans'

Tocqueville, caught in a contradiction. Tocqueville longing, and so he seems to approve of the

affirm religious

view of

the naturalness of the separation of religion and politics.

But he

also reports
political

that the Americans

dogma for the

of

sake of of

democratic
form

liberty. Their

religion

is really
of

limitation

freedom

thought concerning transpolitical human

of conformism.

longing,

a thoughtless and

insincere

So the Americans, instead

to serve

tics, consciously
example supports

use religion

separating religion and poli democracy. For Manent, the American

resolution

the

Catholic Church's longterm

If the individual's
will

to oppose modern
as

democracy

politically.

is sovereign,

the

being

with

rights says, then the

human

being

is

not subordinate religious

to the law of God.

Manent's
animal,

more general observation and

is that the

being

is

also a political

thinking

about religion cannot

be

separated

from thinking

about political

86

Interpretation
religion

forms. The thought that in the

state of

nature,

where man

is wholly natural in the modern is asocial and so could not be has

sense places

it

either political

or religious.

But in
Manent
to

recent

decades the
this

church

largely

reconciled

itself to democracy.
no

presents

change as

moderate

democratic

excesses

morally in the way Tocqueville

"values,"

regrettable.

Religion

longer
It

serves
was as

envisioned. when

a partly did not

aristocratic and somewhat antagonistic

view

institution,

it emphatically

its

mission as

genuine moral support

serving democratic for democracy.

that the church was a

But Manent's final

word

is that the

church's

"political

submiss

to

democ

racy might actually be denounced indignantly the

pate point

"fortunate."

When the
of

church

dominated

political

life, it

impiety

the modern, philosophic effort to emanci

the

The philosophers, opposing piety and anger with reason, at that Today's willful democrats have the politi had the "dialectical
will.
advantage."

cal power

but lack the

self-knowledge

to

use

it

well.

The democratic human

not

being

declares that he
not

was willed

himself, but he does

as

He does

really know himself

to "make

wholly

self-created. man?

really know himself. Manent observes that

the church, and only the church, still asks

are able

What is

And "its

most astute
with

representatives"

known

with a of

benevolence tinged

irony
the
that

the

import"

of the willful

democrat's "lack
with

self-know

So

now

church

combines

"political

submission"

the "dialectical

advantage"

characterized

the philosophers at the

Enlightenment's

beginning

(p. 1 15). Demo

crats now

have

no political reason not

to benefit from that advantage, and Ma

of

nent suggests the

possibility

of a

different kind
more

enlightenment, the way back

to understanding the human

being

in terms

of nature and grace.

The dialec

tical triangle of the church, political rule, and philosophy has not come to an

end,

and

today

the church's astute representatives,

far

more

than

democracy,

stand with philosophy.

astutely

represents

only speculate on whom Manent thinks most the church, but surely any list would begin with the present,
can practical aspect of the

We

unusually philosophic pope. Perhaps the most pressing

democratic failure to
in

con

front the
large

problem of

the lack of self-knowledge is the near extinction of the

which

nation-state.

The nation,

incorporated

or nationalized the church

some

measure and

inspired

almost unprecedented

human devotion,

almost nec

essarily succumbs to democratic criticism of its bellicose and particular nature. The differences that constitute nations seem destined to go the way of the differ
ences that constituted class.

Manent

observes that

"Today,

universal

humanity

tends to overwhelm

difference
. .

so much

that it sometimes seems between the

except maybe a void where vari
each

individual

and

the world

nothing intrudes
'identities'

ous ethnic, religious, and sexual

float,

demanding
old

'respect' "

(p.

186).

Identity

"is

terribly impoverished

substitute

for the

term

community

(p. 190). And according to Aristotle's

articulation of

human nature, "the

com-

Book Reviews
excellence"

87

munity beings

par can

is the

political community.

Manent

agrees

that

human

only fulfill their natures as free and rational beings in community. So although Manent clearly loves France, he defends the
as

a political nation not univer

primarily

a predemocratic expression of

particularity, but

as the

way

sal, political human nature must find concrete expression today.

such

Only

within

limits

can

the human

longing

for

liberty

and

the

good

in

common

be

effective, but democracy as such does not recognize human nature and so limits to human will. Thus democratic self-assertion leads to practical paralysis. Ma
nent

doubts that France has

much of a political

future

and that

"Europe"

will

be

an effective political

body. (That Manent does

and even

not consider

of

the United

States,

Tocqueville's

separation of actual

sufficiently the case American from

democratic experience, is

one shortcoming of his being French and Catholic.) The nation, Manent concludes, "no longer owns the Neither does the political domestication of the church by the nation. The frustration of the human
future."

longing
place

for

political

in Europe's

self-definition.

devotion may give Manent lead

religion or religious

longing
visible

larger

asserts
us

that "The quite

diminu
that this

tion of religious practice should not

to the

dogmatic

conclusion are

tendency is destined
excesses of cal

to continue

indefinitely"

(p. 112). There

and

dialectical
the

reasons to suggest an alliance

between philosophy behalf

of political

the

church against

democracy

and on

life. The

church and the politi

community are the ways most human beings experience the social and uni versal dimensions of their existence. The asocial and abstract universality of the
with rights over

being
or

is inhuman

and

unfulfilling, and
uncertain

becomes

more so as

it

radical

izes itself

time.

Manent is future he is

but

more

hopeful than

either

Strauss

Heidegger

about

the

of the triangle of

philosophy, political power, and

of either naturalism or

the church, because

certain about

the

inadequacy

historicism to

account

adequately for the

present condition of

human beings.

Bradford P. Wilson

and

Ken Masugi, eds., The Supreme Court

and

American

Constitutionalism (Lanham, MD: Rowman & Littlefield, 1998),

vii +

298 pp.,

$25.95

paper.

Ronald J. Pestritto

University

of Dallas

The Supreme Court

and

American Constitutionalism is the last

constitutionalism sponsored

volume

in

trilogy

of

books

on

American

by

the John M. Ashand

brook Center for Public Affairs. Editors Bradford P. Wilson

assemble an

Ken Masugi
to the

array

of accomplished scholars whose

refreshing

approach

subject consists of

looking
As

carefully

at

the

actual

text of the Constitution and

political

taking it

seriously.

anyone

who

studies

American

institutions

knows,
the

the favored

mode of not

Supreme Court has

scholarship on Congress, the presidency, or even been to approach these institutions from the perspec book's
editors

tive of their overall place in the constitutional order, or, as the

put

it,

to examine "their

relation

to the

forms

and ends of republican constitu observes

tionalism"

(p.

vii).

Rather,

as

Akhil Reed Amar

in his

contribution

to

this volume, "it is remarkable

how little

attention

many

leading

scholars and

distinguished judges have

and

Constitution"

paid

to the text of the

preface

(p. 118). Wilson

Masugi

are

certainly

right

to suggest in their

that the

book's

contrib

utors span

many

schools of

thought,

yet almost all of

them seem to concur on

ought

the manner in which serious study of the Supreme

Court

to be

conducted.

The

result

is

book

well worth

about

the decline of

constitutionalism

reading for those who, with good cause, worry in contemporary American politics.
with

The book is
extent

formally

divided into two parts,

the

first addressing the

teacher of our
role as a teacher or

to

which

the Supreme Court

has

acted and should act as a

republican principles.

The

question of

the Court and

its

primary authority

on

American

constitutionalism

volume, since authors in the second half of

is really the theme of the entire it address specific lessons the Court

has taught
American

and ought

to teach about our Constitution. Walter Berns

where

lays

out

the theme in his opening essay,

constitutionalism

he identifies the has

chief characteristic of

founders'

as the

promotion of republicanism over

democracy. It is,

of course,

this distinction that

and

largely

become lost in

our

contemporary, democratized politics,

Berns

wants

to know how

effec

tively

or

ineffectively
"republican

the Supreme

Court has taught the distinction in its

role as our

Chief Justice John Marshall, according to Berns, was the "greatest of the because he set the example of how Supreme Court's republican

schoolmas

justices

should use

their opinions as educational tools

(p. 8). Berns

contends that

interpretation,

Fall

1999, Vol. 27, No. 1

90
the

Interpretation

twentieth-century Court has

not

followed Marshall. He
the

cites

this century's

censorship
raises an

rulings as a prime example of

Court's
of

having

provided

exactly

the wrong kind of lesson about the true meaning

the Constitution. Berns also

ist (and especially

when

issue that has been vigorously debated among students of The Federal students of Martin Diamond's essays on The Federalist),
suggests that the system established

he

by

the

framers is

not self-execut

ing. The

constitutional

framework is

not sufficient,

he reasons,

without a people

who recognize the

restraint.

dangers
or not

of excessive

democracy

and the virtues of republican

Whether

the

framers

themselves recognized this

insufficiency
the Anti-

in the

system

Bern does

not

say, but he does note that "not everyone was confi

dent that [the

framers']

Federalists
their

and

remedy would prove to be Benjamin Franklin as prominent

sufficient

He

cites

examples of

those who had

doubts (p. 4).

contrasts the

While Berns's essay

teaching

of

the early Court to that

of

the

Court in this century, Randall

Kennedy
view,

offers a specific example of

how the

twentieth-century Court, in his

of

American

constitutionalism.

In addressing the

has failed to teach properly the principles period he calls the "second
criticizes the

reconstruction"

(1954-1970), Kennedy justifiably

Brown

v.

Board

of Education decision for arriving at the correct result without actually teaching us anything about the inherent contradiction between segregation and our consti
tutional
principles.

What the Court

injustice"

should

have taught in its desegregation deci

lesson"

sions,

Kennedy
prior

suggests, was the

"haunting

of

its

own

complicity in the

"moral
in its

crimes of racial

jurisprudence

on

(p. 25). While owning up to the serious flaws segregation would be an appropriate place to begin,

however,

the

Kennedy
the

offers.

Court's confessing to past sins is the extent of the alternative that The logical next step, an explanation of how the principles of
are antithetical to racial

Constitution
with

discrimination, is

never suggested.

The

difficulty
our

that logical next

principles and

fundamental

step is that a discussion of the conflict between racial discrimination necessarily leads to recog
principles and various racial preference pro

nizing the conflict

grams

between those

that so many continue to

criticism of

it is that, in his
that the

hold dear. This may help us to understand why the Brown opinion, Kennedy does not simply suggest

Justice Harlan's dissent in

Constitution is

Plessy v. Ferguson (where Harlan famously argues "colorblind") as an alternative constitutional argument
reaches the correct result and teaches republicanism

against segregation. a vital

Harlan's dissent both

American do
a

lesson

about

in

doing
to this

so.

If the Court

needs to

better job teaching the

principles of the

American

Constitution,
attention

and

if

most of the contributors

book

agree that careful

to the text is the

Hadley being taught.

tionalism

Arkes'

best pedagogical approach to such a mission, it is fine essay that explains why our constitutionalism is worthy of As Arkes reminds us, we ought not to teach American constitu

philosophical principle.

just because it happens to be ours, but because it is grounded in sound In other words, American constitutionalism requires a

Book Reviews
pedagogy that
lessons"

91

rejects

legal law

positivism.

Arkes
was

contends that one of the

"deepest

the

founders "had to impart

positive
and
law"

the understanding of the

difference

between the

those principles of

lawfulness,
chosen

or natural

law,

that

lay

behind the

positive

(p. 30). The

great teacher of

this constitutional
teaches

principle

was, for

Arkes, James Wilson. Wilson is

legal
positivism at

because he

that American constitutional principles are opposed to skepticism and to the

moral relativism and

the heart of skeptical legal

philosophy.

This

comes out most

Blackstone,"

positivism of

clearly for Arkes in Wilson's argument "against the legal where "Wilson would assert the foundation of the
right"

American law in from

natural

(p. 28). John Marshall is

write opinions not

also a

hero

Arkes'

of

essay, since Marshall

did

not

hesitate to

that "could be drawn

deductively
on

deeper

principle of

law that did it

depend for its validity ironic that he

contemporary
Arkes'

its

mention

in the

Constitution"

(pp. 33-34).
all the more

Arkes'

argument against chooses

legal

positivism makes

to

conclude

his essay
who

by

pointing to Justice Scalia

to
equate with

as a

example of a selection of

jurist

teaches in the mode of Wilson and Marshall.

Scalia,

whom

he is

careful not

Wilson

and

Marshall,

is odd, because the legal

principles of

positivism which constitutionalism and

American
on the

Arkes rightly distinguishes from the is at least as prevalent on the right

a prime example of

today

as

it is

left,

Justice Scalia is

it. In

recent

remarks at the

Gregorian University, Scalia

embraced

precisely that positivistic

principles
of

legal philosophy that Arkes identifies as antithetical to the founding. Scalia's remarks are worth quoting at some length:
The
whole of

the

theory

of

democracy

ory

it. You

protect minorities

is that the majority rules; that is the whole the only because the majority determines that there are
.

certain minorities or certain

minority

positions

that

deserve

protection.

The

mi

nority loses, except to the extent that the majority, in its document of government, To talk about the natural law is not to has agreed to accord the minority rights.
.

talk about something we

all agree upon.

...

If

you're

democrat, if
Scalia's legal dorses

you

do

not

like the Nuremberger laws,

your

going to be a faithful, loyal duty is to persuade

others.1

positivism

is

shared

fully by

Chief Justice Rehnquist,

who en
assert

and relies upon when

the

moral skepticism of

Oliver Wendell Holmes in

ing

that,

incorporates in that constitution safeguards for in society adopts a constitution and dividual liberty, these safeguards indeed do take on a generalized moral lightness or assume a general social acceptance neither because of any intrinsic goodness.
a

They

worth nor stead

because

of

any

unique origins

in

someone's

idea

of natural

justice but in
people.2

incorporated in simply because they have been

a constitution

by

One

would

have

difficulty

reconciling

such argumentation with

the early Ameri

can principles of constitutionalism that

essay.

Arkes

so

capably

expounds

in his

own

92

Interpretation
Like Arkes, James R. Stoner, Jr.,
reasons that we must order

have

access to the

unwritten principles of

the

Constitution in

to access the fuller meaning of

the text itself. It is

be

understood as

only the theory of natural rights or natural law that must underlying the American Constitution, Stoner contends, but
not natural

also the tradition of the common

Americans'

on the

early

law. While Arkes bases his essay at least partly law rejection of Blackstone, Stoner contends

that the common law tradition offers a

less

"contentious"

alternative.

He cites,

for example, the "radically different classical natural law on the one hand
law
(p. 48). Stoner does
of the

conceptions of

law

and

political

life in
other"

and modern natural rights on the

as evidence of the problems one encounters argument

not

in relying too heavily on the natural reject the natural law argument, suggest

ing
tive the

instead that "at the time

complementary"

seen as

Founding, natural law and common law were (p. 49). In the end, however, the common law perspec
a

really is, as Arkes shows, Constitution than the one

suggested

fundamentally different way of understanding by the natural law tradition, Stoner's

only
offer

effort to reconcile the two notwithstanding.

Contributors to this
be taught
should of about our

volume not

different

visions of what ought

to

constitutionalism,
responsible

they

also offer

different

accounts of who

be primarily

for

doing

the teaching. For

must

Berns be the

and

many

the

book's

other

contributors, the

Supreme Court

teacher of

republicanism, since both the

legislature Berns

and the executive are either unable or

unwilling to take the lead

new

role.

argues

that, "of the

various organs of the

government, the

Framers

expected the

judiciary
of

to be best situated to do

its

part

in the

'forming [of]
of

a certain

kind

citizenry'"

(p. 10). Such is the

assumption of several proclaims that

these essays,

including

Michael Zuckert's. Zuckert

"the Supreme Court

was

jewel

of

American

constitutionalism"

originally intended to be the crown because it was expected to hold the other
while one might expect

branches

accountable to the

Constitution (p. 129). Yet book

on the

the Court to be so regarded in a

Supreme Court

and

American
C.
Bru-

constitutionalism, some

of a

the authors offer alternatives. For

Stanley

limited, internal perspective on the Constitution. "Al though we occasionally hear claims to the he reasons, "it does not follow from the fact that we have a constitution, even a written constitution,
contrary,"

baker, judges have only

for viewing it will be that of the (p. 74). Brubaker mainly doubts that "a court is a better equipped institution to give a more
that the
perspective authentic expression to the
regime"

best

Court"

underlying
more about

character of a

(p. 76).

Why

do

courts,

for instance, know

perspective

the inherent principles of republicanism

citizen"

than the people's representatives?

For Brubaker, the "good

or serious

for understanding the Constitution. Such a citizen is not love his country "right or Instead, he loves his country because he loves his country's constitution, and he loves his coun try's constitution because he recognizes that it is a good and just constitution.
a

has the best

blind patriot; he does

not

wrong."

Brubaker does

not

say how, exactly,

citizens are to come to an

understanding

Book Reviews
of what constitutes a

93
be

just constitution, but he does

completely,

suggest that

they

cannot

taught the
role

it,

as

least

not

by

the courts. George Anastaplo concludes

courts ought

first

part of

the book
citizens

by

in providing
polity.

agreeing that the with the "proper

to have virtually no

education"

that is so important to a
the

healthy
role of
tures"

Instead, he

contends, "in most

of our public controversies

the courts should

be

subordinated to the guidance provided

by

legisla

(pp. 104-5).
of

While Part One

more

the book addresses the broader and, in many respects, the

fundamental Court

questions of a good

Court's
its

role as an educator of constitutional

ism, Part Two turns

that the
ness with which the
procedure as an

deal

of

attention to

suggesting

possible

lessons

needs to

teach,

and

to analyzing the effectiveness or ineffective

Court has

undertaken this mission.

Amar

posits criminal

given the increasing scrutiny that undergoing and the lack of direct ties among the Court's current personnel to those Warren-era decisions. In suggesting a new direction, Amar urges that we cease to read the Constitution as requiring
of current

issue

importance,

some

Warren-era

precedents are

protection of

the guilty. "The

guilty,"

he argues, "receive byproduct

of

procedural protection
innocent"

only as an incidental and 121). Nelson Lund looks

and concludes that the

unavoidable

protecting the
the
of

(p.

at recent cases

dealing
more new

with

separation of powers

Court has become

He traces this

interested interest to

late in

keeping
Madi

Congress in its
son's

proper place.

a revival of

doctrine in Federalist 48 that the legislature is the

most

dangerous branch
to

of government.

Jeremy
of

Rabkin

assesses where the

and

Court

stands with respect

the growing importance of international law

eignty.

the issue of American sover

show

The tendency

the

current

Court, he
at

admits, has been to

should pose

"a

great

coolness to arguments that on est

international law

any

serious constraint

American

policy."

The Court has,

the same time, "shown almost no inter

in articulating
to
commit

constitutional

limits

on the

ment

itself to international

norms"

authority of the American (p. 278). Rabkin does

govern

believe,
well

however,

that only slight changes in the makeup of the

more active

Court

could

very

lead it to become Both Zuckert

ought to avoid

in international law issues.

separate

and

Randy

E. Barnett, in

essays, suggest that the Court

that it can

theories,"

"novel

constitutional

and

do

so

by taking
admits of
...

seriously the theory of rights that underlies that this is not an easy task, due to "the silence,

the Constitution. Zuckert

or

polysemousness,
over

the

Constitution itself (p. 132). He looks to the debate

of

the Civil

Rights Act

1866

as a means of
concludes

obtaining

guidance on

interpreting
of rights

the Fourteenth Amend

ment, and those in

that there was a

theory

clearly

understood

by

that debate. There

of the

is, therefore, something

"substantive"

to guide our

understanding
act

Fourteenth Amendment,

although

Zuckert

warns

that "the

(p. itself clearly does not justify a substantive due process that a purpose of the Constitution is For 155). Barnett, understanding primary
nature"

jurisprudence"

to

protect

the

people's

"pre-existing

rights of

suggests the proper

man-

94
ner

Interpretation
in
which

the

Court
be

ought to

interpret the

proper"

"necessary

and

clause.

That

clause should

regarded

primarily

as a protection of the people's rights

against

infringement
"necessary," "proper"

by

the government.

Accordingly,

certain rights

laws

might would

be
not

deemed
qualify

as
clause

but if they threaten fundamental and would therefore be prohibited

they

by

the

"necessary

and

proper"

(pp. 157-59).
the essays, the piece
as

As is the Gerard V
the Court's

case with several of

by

Robert P. George

and

Bradley

identifies the New Deal

marking
one

a turn

for the

worse

in

constitutional

jurisprudence. On the

hand, they

contend, the
or

Court significantly and insular decisions. Yet

expanded and

defended

the rights of

individuals

"discrete

minorities"

against

legislative
the

majorities

through a series of activist to rein in

on the other

hand,

Court has

refused

legislative

majorities when

those majorities appear to act in a manner contrary to the two

key structural features of the Constitution: separation of powers and federalism. Taking up federalism in particular, George and Bradley make a compelling case that the Court ought to defend federalism with an increasingly aggressive use of the interstate commerce clause. They are especially heartened by the recent
case of

United States

v.

Lopez (1995),

where the

Court

struck

down the federal

(pp.

Gun-Free School Zones Act

195-96).

as an abuse of the

interstate

commerce clause

The
praise

most contentious aspect of

George

and

for Justice

Thomas'

dissent in the 1995

of

Bradley's very fine essay is its case in which the Court struck

down

state attempts to

limit the terms

federal lawmakers (U.S. Term Limits,

Inc.,

v.

model

dissent is, in fact, urged on us by the authors as a for future Court action in defense of federalism. For George and Bradley,
Thornton).

Thomas'

the great virtue of this dissent is that it affirms the central role of the states,
qua

states, in the establishment and legitimization of the Constitution: Thomas

rejected the notion

"squarely According

that, in his words, 'the

the

undifferentiated people of

the Nation as a

whole'

are the ultimate source of

Constitution's

authority."

to their view, and the view

they

attribute to

Thomas,

the Preamble

to the Constitution should

United States

effectively read: "We, the people(s) of the (several) (p. 208). There are, of course, several questions that might
this proposed reading. Some might ask about the
which state that
.

be

raised with respect to

words

that follow in the

Constitution's Preamble,
a more perfect

the goal of the 1787

Constitution is to "form

Union. "we the

Such language presumably already existed; be

made
other

suggests that some union

people"

"union"

wise, exactly what

ers might point to the

consisting was it that

of

of

needed to

"more

perfect"?

Oth

Declaration

Independence,
and

which refers

"one

people"

in

laying
that,

out the common principles of as much as

the

new nation.

explicitly to Still others

might remind us

George

Bradley

wish

the

Preamble had This fact

been

written with the revisions

they

suggest, it

was not so written.

compels those who are particular about come to

the actual words of the

people."

Constitution to

terms

with

the phrase "We the

Book Reviews

95

The essay also provides grounds for quarrel in emphasizing one of the very Thomas' few (if not the only one) of Justice opinions that could possibly make

him

sound

like for

a paleoconservative.

George

and

Bradley
of

do

well not

to assert there

that the Thornton dissent is characteristic of

are grounds
are

Thomas'

jurisprudence,
constitutional

since

interested in

believing that he, more defending federalism,

than any
embraces

those fellow justices who

philosophy
affirms

largely

at odds with the one the authors advocate.

centrality of the Declaration of United States and defining the curring

typical
opinion

Thomas generally Independence in establishing "the

principles that unite them.

the

people"

of the argued that con

He has

these principles give meaning to the

Constitution
v.

of

1787. Justice

Thomas'

in the
of

case of

Adarand

Pena

(1995) is but

one of

the

more

illustrations

his

views.

In that case, Thomas

opposed a government

racial classification program,

writing that "the

paternalism that appears at the

heart lies

of

this program is

at war with

the principle of inherent equality that under

Independence."3

and

infuses

our

Constitution. See Declaration

of

The

potential problems with

George

and

stitution's origins are addressed

directly

Bradley's understanding of the Con excellent contri by David K.

Nichols'

bution in this
criticizing

volume.

Thomas'

atypical

Nichols, in fact, makes his remarks in the context of Thornton dissent, and he largely follows Madison's

reasoning in Federalist 39. As Nichols explains, the intent of the 1787 Constitu tion was to "insure that the national government was a government of the people
rather than a

league

of state governments as was the case under the

national government

Articles.
was not

The

people were

to have a relation with the

state

that

government"

filtered through
explains
federal."4

(p. 226). It is in this

Thomas'

spirit that

Madison

wholly
which

in Federalist 39 that the Constitution is "neither wholly national nor dissent in the term limits case, Nichols concludes that
praised

is

by

George

and

Bradley

as the model

for future defenses

of

federalism, "rests
jected

on the assumption that

the people speak to the that was

national gov

ernment through the state governments, an assumption

Convention"

decisively

re

by

the Constitutional

(p. 226).
contribution

Nichols'

essay

also makes an

important

to this

volume

by

more

fully exploring
declined in the

an

issue to

which several of

the authors

allude.

Many

in the book

contend that the

quality

of the

Supreme Court's

constitutional

jurisprudence has

twentieth century.

Berns

even remarks

that the presidency began

to lose its ability to teach the

virtues of republicanism

during

this same period

no coinci

(p. 6). Yet it is Nichols

who explains
related

why it is that

such a

decline is

dence, but is instead closely

While Berns rightly
jurisprudence
points

to the rise of the Progressive movement.

to Holmes as a chief influence on the

changing

of the twentieth century,

Nichols does

well

to consider Woodrow

Wilson in showing that macy

constitutionalism

faces

a threat

from the growing legiti

explains that the

of the administrative state.

For the Progressives, Nichols form

problems of government were not so much political as

administrative, and so

the important

questions

were

"not

about the

or ends of government

but

96

Interpretation
means."

about

the
government

As

a consequence of
relevance.

this transformation, "the doctrine of

govern

limited

loses is

We have nothing to fear from

ment,"

since
we state

want"

"government is merely there to help us to (p. 211). Yet Nichols also realizes that the modern

get what we all agree administrative

is

a reality, and so the problem

becomes

one of

dealing

with

this reality in

the context of promoting a proper understanding of our constitutional order. In

proposing
the

way

of

dealing

with

this tension, Nichols reminds

appreciated the

us

that

many

of

founders, especially Hamilton,

The important
constitutionally bounded

to

governance.

point

is to draw

a clear

centrality distinction between the

the modern administra

of administration

founders'

administration and

tive state. For while Hamilton recognized the need

recognized

the importance of constitutional

for administration, he "also government. Only in such a gov in

such a at

ernment

would

the rights

of

the people be secure, because only

government would even popular will

be limited,

least in the

short run,

by

the Constitution. Administration must

established

find its field

of action within

the

limits
in

by

popular will and

the

Constitution"

(p. 231). So it is that

we are

reminded of

the importance of a proper understanding of constitutionalism

contemporary times. And so it is also that

examined

one can appreciate the salience of

and

the issues that are

editors on

in The Supreme Court

American Constitutionalism. The

do

us the service of

bringing

together some of our most

important thinkers
a

these vital questions. The editors have also succeeded

of viewpoints on case

in providing

diversity

American

constitutionalism.

These

viewpoints cannot

be

reconciled with one

another, and so

they

point out

in every to the reader impor

in this impor

tant choices that must be

volume

made.

What is universally true

about the essays and the

is the

seriousness with which

they

treat the

Constitution,

tance

they

attach

to grounding any understanding of our current political order

of our constitutional order.

in

an

understanding

NOTES

1. Antonin

Scalia,

"Of

Democracy, Morality

and the

Majority,"

Origins: CNS

Documentary
Constitution

Service 26 (27 June 1996): 88-89. 2. William H. Rehnquist, "The Notion of a Living on the Constitution and Constitutional Law, IA: Kendall/Hunt, 1981), p. 77. Seriously: Essays 3. Adarand Constructors, Inc.
v.
Constitution,"

in

Taking

the

ed.

Gary

L. McDowell (Dubuque,

Pena, 132 L Ed 2D 190 (1995). Mentor, 1961),

no.

4. Clinton Rossiter, ed.. The Federalist Papers (New York:

39,

p.

246.

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EDITED BY JOHN C. MCCARTHY

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