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The Rise of the Counter Establishment
© 1986, Sidney Blumenthal, used with permission

Chapter Twelve

THE

SECOND

COMING

Then, as if on cue, new characters marched onto the stage. New proposals, already rehearsed within the Counter-Establishment, were dramatically unveiled. Some notions, introduced without pomp and circumstance during the first term, were now reintroduced as new ideas with loud trumpeting. The Counter-Establishment was in endless production. By constantly adding scenes to the script, the conservatives tried to keep the plot moving. The new tableaux, however vivid, were not spontaneous surprises; they appeared only because a construction crew had assembled and set them before us.

At the start of Reagan’s second term, the conservatives waged both conventional amid guerrilla warfare against the Democrats. The mighty office of the presidency served as heavy artillery ("Make my day," Reagan fired), while the Counter-Establishment cadres staged blackpajama raids, constantly throwing the enemy off balance.

In Washington the conservatives set up a Potemkin Village almost every month, moving the same bands of ideologues from hotel ballroom to hotel ballroom. A favorite subject was the "Reagan Doctrine," a rationale for supporting Third World insurgencies against Soviet-backed regimes. By the logic of the "Reagan Doctrine," as developed by different advocates, the Communists were either very strong or very weak. Whatever the case, those congressmen and senators who failed to vote for military aid to the Nicaraguan contras and other designated "freedom fighters" were charged with lacking the manhood to defend the West.

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Speaking of Communism, in May 1985, at the Madison Hotel, conservatives conducted a conference to dispute the pernicious notion that there was some "moral equivalence" between America and Russia— an idea they claimed liberals backed. Yet "moral equivalence" was a formula contrived by Jeane Kirkpatrick. No liberals stepped forward to defend "moral equivalence." No matter. "Moral equivalence" kept them on the ideological defensive.

The conservatives’ tactical mobility, however, was not unlimited. If they were not halted by the catatonic Democrats, they were contained by their own ideology. Their inventiveness stopped at the far edge of their shadow liberalism. Conservatives almost invariably felt uncomfortable in the role of a responsible governing establishment. Because their self-definition was dependent upon their adversarial stance, they always thought of themselves as the opposition. It was always easier for them to define what they were against than what they were for. Even when they came up with a prescriptive program its ultimate intent was almost invariably to counter the foe— regular Republicans, liberals, Communists.

Three distinct horizons appeared in the future the Counter-Establishment was making. First there was the immediate future, a jumble of deficits and budgets. To explain it to us, the Counter-Establishment rolled out a new conservative scholar— Charles Murray, with his critique of the welfare state. Then there was the future that would be judged by a new conservative judiciary who would issue their decisions, precedent by precedent, incrementally changing the law itself, reversing the interpretation that has prevailed for most of the twentieth century. And then there would be the future perfect, which was also the past perfect, a category that "transcends time," as Reagan noted in his second inaugural address. To attain this state of grace we must ascend to the heavens to install a "Star Wars" mechanism, dispel the doomsday anxiety, and usher in universal peace— the final Restoration.

Almost as soon as the election was over, the radiant campaign commercials were packed away and a bleak David Stockman, long under wraps, pulled up a chair in front of the cameras. Unless draconian

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cuts in the budget were made, the deficit would never be controlled and the economy would be choked: Dunkirk again.

The deficit was now the chief instrument of conservative social policy, just as it had once been for the liberals. In the past, a deficit was defended as essential to economic growth and the provision for social programs. Reagan, too, reaped the rewards of his deficit, which fueled the recovery and his reelection; yet he decried it with the ritualism of the sinner who hates his sin but gets too much enjoyment from it to give it up. By clinging to the atavistic assumption that a deficit was an absolute evil, conservatives could collect its benefits while using it to slash others’.

Stockman took on this Calvinist task with grim enthusiasm. The pain principle, for the moment, was asserted over the pleasure principle. Payment was overdue: liquidate farmers, liquidate students, liquidate small business. "I don’t see why we have any responsibility to step in," Stockman said.

On virtually every other desk at the 0MB rested the latest conservative best-seller, Charles Murray’s Losing Ground, the crucial text of the period, serving the same function of justification as George Gilder’s Wealth and Poverty did in the first term. Gilder, for his part, waved incense over the second term with The Spirit of Enterprise, a paean to the successful in the spirit of Horatio Alger. Murray lacked Gilder’s rhapsodic prose style, but he more than compensated with at least a hundred pages of dense data. The complex array of statistics was decoded by his astonishingly simple thesis— poverty programs cause poerty. By demonstrating that the number of poor had not decreased since the establishnient of the War on Poverty, he seemed to provide more evidence for the neoconservatives’ favorite law— the law of unintended consequences. According to Murray, the War on Poverty was imposed from above by a liberal "elite," acting without the approval of the "blue-collar and white-collar electorate." 1 Lyndon Johnson’s 1964 landslide was not, then, a mandate for the Great Society. Murray’s solution was the dissolution of the welfare state, which he claimed had become a Rube Goldberg contraption preventing the poor from finding their fortunes in the free market. Conservatives believed that Reagan’s 1984 landslide was a mandate to undo the Great Society.

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They hailed Murray’s argument, and overnight he was cited everywhere as one of the foremost experts in the field.

Only two years before Murray’s book and Murray himself became celebrated, he was toiling in Iowa as an obscure policy wonk. He had been chief scientist at the American Institutes for Research, a private think tank, but his principal claim to fame was a pamphlet authored for the Heritage Foundation, "Safety Nets and the Truly Needy," which argued that welfare fostered poverty. By now, Murray had befriended Michael Horowitz, the general counsel at the Office of Management and Budget, a neoconservative talent scout. On the strength of his Heritage tract and Horowitz’s recommendation, he was invited to a luncheon at the Manhattan Institute, the Counter-Establishment think tank that had helped incubate Gilder. William Hammett, the institute’s president, appraised Murray as "a nobody" who could be somebody. After some reflection he decided to take "a flier" on Murray. In short order, $125,000 was raised to support him while he turned his idea into a book. 2 Irving Kristol’s connection with the Olin Foundation accounted for $25,000.

Superficially, Murray’s argument seemed to be a straightforward demonstration of Kristol’s treasured maxim, the law of unintended consequences. Yet Kristol and all other neoconservatives claimed to be critics of the welfare state in the name of its reform. Their attachment to it was a legacy of their left-wing backgrounds, which distinguished them from plain conservatives. Murray, however, advocated the abolition of the welfare state. In their willingness to secure immaterial backing for him, the neoconservatives’ commitment to the political needs of the Counter-Establishment took precedence over their expressed belief.

Once Murray completed his manuscript, the Manhattan Institute’s responsibility did not end. A big chunk of the money was earmarked for promotion. Conservatives, after all, do not blindly invest their hopes in the marketplace of ideas; they prefer marketing to natural selection.

"Events of the past six months demonstrate that the Manhattan Institute has indeed become a noticeable force in American political ideas and we offer the following summary for our supporters’ evaluation," Hammett wrote in a private memorandum on December 26, 1984. In it he described "THE MAKING OF A CLASSIC":

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Hammett toted up a list of dozens of magazines and newspapers that had excerpted, analyzed, or reviewed the book. The groundwork for the favorable reception of Losing Ground, he noted, was laid during the "first three months following publication," which "were largely devoted to making Murray and his book better known to the intellectual and journalistic community." A "key element in that effort fell into place" when the institute secured $10,000 to "gather twenty of the nation’s leading scholars from both the conservative and liberal camps, along with some of the best writers on the subject, for a two-day discussion." Then the institute sent Murray into the wider world, for "personal appearances, combined with television and radio interviews." All cash on hand would be spent on his victory tour. "Any discretionary funds at our disposal for the next few months will go toward financing Murray’s outreach activities." In just mouths, Murray was transformed from "a nobody" into an intellectual star.

But almost the instant after he was boosted into the firmament, his luster was dimmed. According to a growing number of critics, Losing Ground was beset with errors and omissions. Murray’s calculation that the poverty rate had not dropped between 1968 and 1980 failed to factor in the business cycle and unemployment rates. His assertion that the Aid for Dependent Children program was the main source of illegitimacy among black teenagers neglected to consider or even to cite any of the extensive scholarship uniformly showing no such cause and effect. Amid much of his case rested on the example of an imaginary welfare couple, "Harold and Phyllis," who lived in Pennsylvania, where, critics pointed out, the high level of benefits was atypical. Murray, moreover, figured food stamps into their welfare income, a disincentive to work, then wrongly assumed that they would be denied food stamps if they did find jobs. Also, his statistics never passed 1970, after

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which welfare benefits in Pennsylvania significantly dropped. Losing Ground, charged the critics, built a general premise on a faulty case study. "He has not proven anything," said Senator Daniel Patrick Moynihan. 3

Murray answered the attacks by reiterating his faith in his own statistics. But he suddenly veered away from his conclusion, asserting that his book never proposed "to scrap the whole system," or to "suggest a threshold or bound to a society’s responsibilities to the poor," or to "prescribe a particular size of safety net," or to "grade the performance of the Great Society." 4 Why, then, in Losing Ground did he propose "scrapping the entire federal welfare and income-support structure for working-aged persons?" 5 Was the use of the book as a rationale to slash social programs an unintended consequence?

Among conservatives, Murray’s book was still accepted as gospel. The criticism was dismissed as a predictable response of the Liberal Establishment— "some of the most intellectually debilitated of Americans . . . mental incompetents . . . limp-minded and lame-prosed critics," according to Gilder. 6 Curiously, the conservatives did not notice that Murray’s argument directly contradicted the last major conservative statement against the welfare state, previously accepted as gospel. "The war on poverty that began in 1964 has been won," wrote Martin Anderson in Welfare, published in 1978. 7 Anderson, a Hoover Institution scholar who became Reagan’s first chief of domestic policy, argued that because poverty had been eliminated, the programs that had worked so well were no longer needed and therefore the welfare state could be safely dismantled. Murray’s thesis began from a diametrically opposite point: "We tried to provide more for the poor and produced more poor instead." 8 Who was right? One thing was certain: they could not both he right. Conservatives did not debate this question. Instead they rushed to defend Murray as a movement intellectual. Once saluted by the conservatives as an example of their rigorous intellectual standards, Anderson’s book was silently remaindered on a back shelf.

The commotion about Murray subsided almost as rapidly as it began. Yet the Counter-Establishment was still churning its gears, moving simultaneously on numerous fronts. Perhaps the greatest politi-

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cal opportunity for the conservatives appeared in the realm of jurisprudence.

Conservatism is a defense of tradition. Yet Attorney General Edwin Meese III defended tradition by attacking at least sixty years of Supreme Court precedent. His version of conservatism, elaborated in a July 1985 speech to the American Bar Association, was so unprecedented, such a radical departure from settled law, that he provoked two Supreme Court justices, John Paul Stevens and William Brennan, to descend from the bench and upbraid him for his extreme misreading of American history and law.

This extraordinary spectacle was neither politics nor law as usual. It was not the latest Washington sporting event. It was not about who’s up, down, in, or out, it was not a contest between personalities or even institutions. Rather, this was a conflict over bedrock philosophy, the meaning of the American past as it applies to current law.

Although the legal back and forth may sound abstract, it was as politically immediate as the conservative movement’s ideological agenda, imposed by a newly enthroned federal judiciary, more than half of which will be selected by President Reagan and Meese. On a whole host of issues— affirmative action, abortion, and school prayer, among others— the conservatives sought to rescind the standing law. But they wanted far more than alterations in mere policy; they wanted a fundamental transformation of the philosophy underlying these policies so that such reforms would be impossible in the future. Thus the movement conservatives acted to discredit established canons of judicial interpretation.

Meese may be an unlikely philosopher, but his statement was no spontaneous prank. The concepts he espoused, including the notion that the Bill of Rights should be not applied to the states, have a lineage that runs deep in conservative movement history, particularly the post-1945 writings that have shaped the "Reagan revolution." These ideas, moreover, were aggressively promoted by the foundations and think tanks of the Washington conservative establishment especially devoted to law.

Throughout 1985, in various interviews, Meese suggested that his view of the law is undergirded by philosophical principle, that it was

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more than an ideological instinct. We must, he said, go "back to basic principles." The Supreme Court ruling legalizing abortion, Roe v. Wade, is not really "an abortion case." It is, he declared about "the more fundamental principle that’s involved there . . . the separation of powers." The court’s ruling, he added, is "an arrogation of power away from the states." Then he labeled the Miranda decision, requiring that criminal suspects be informed of their rights, "infamous." "You don’t have many criminal suspects who are innocent of a crime," he declared.

In his ABA speech, Meese attempted to explain his various complaints as deductions from a coherent doctrine. At each step of his logic he journeyed farther into the past. First, he assailed the extension of the guarantees in the Bill of Rights to the states, a process that began with a Supreme Court ruling on the First Amendment in 1925. "Nothing," he said, "can be done to shore up the intellectually shaky foundation upon which the doctrine rests." It was, Meese claimed, "politically violent and constitutionally suspect."

In place of decades of court precedent supposedly warping federalism and criminal law, Meese offered something he called a "Jurisprudence of Original Intention"— a jurisprudence based on a correct reading of the Founding Fathers’ collective mind— the legal corollary to the Restoration myth.

"We will," he said, "endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment." As an example, he noted that "neutrality between religion and irreligion would have struck the founding generation as bizarre."

With "original intention" enshrined as the reigning philosophy, vast areas of the law would have to be rewritten. Yet as Meese and the movement conservatives see it, the courts are already thoroughly politicized. To them, the pre-Reagan federal judges act as a priesthood of "judicial activists," who by attempting to reconcile precedent with changing reality are promulgating a liberal ideology. In their effort to return to "original intention" the conservatives are attempting to cleanse the legal system of the liberal tincture. This places them, they believe, in the position of defending tradition against the liberal cadre dressed in black robes.

Meese provoked a thunderous response. Justice Brennan issued his

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judgment that the doctrine of "original intention" is "arrogance cloaked as humility." Moreover, it is a cry "from persons who have no familiarity with the historical record." He dismissed "this facile historicism," which seeks to justify itself as "a depoliticization of the judiciary." To Brennan, the hypocritical "political underpinnings of such a choice should not escape notice."

Having dispatched "original intention," Brennan proceeded to train his sights on Meese’s Bill of Rights heresy. More than sixty years of law is at stake, he observed. The preemption of states rights by the Bill of Rights, a 1925 ruling, was made possible by the Civil War amendments to the constitution. "It was in particular," he said, "the Fourteenth Arnendnient’s guarantee that no person be deprived of life, liberty, or property without process of law that led us to apply many of the specific guarantees of the Bill of Rights to the states."

On this point stand many of the great decisions of the modern court, from Gideon v. Wainwright, guaranteeing counsel to all poor defendants, to New York Times v. Sullivan, which held that libel suits are subject to the First Amendment.

Justice Stevens pursued these questions even more directly than Brennan. He cited Meese by name and then dealt with his proposition about the Bill of Rights and "original intention" as one. To accept thc Meese position, he pointed out, "overlooks the profound importance of the Civil War and the postwar amendments on the structure of our government." Almost as an aside, Stevens derided Meese’s implicit views that the "founding generation" thought as a monolith.

Why, suddenly, this heated debate about the "founding generation" and the Civil War? What does "original intention" have to do with Meese’s intention?

The roots of the controversy spread into the past, an obscure but real past unremarked upon by Meese, but the source of most of his ideas. The thread of this heritage runs from the Founding Fathers to Jefferson Davis and the Confederacy, from the nostalgic twentieth-century Southern Agrarians such as Richard Weaver to the early movement intellectuals like Willmoore Kendall, and at last to the ideological bastions of contemporary Washington.

"Original intention" as a constitutional strategy can in fact be

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traced to the late eighteenth century. But as the legal scholar W. Jefferson Powell detailed in the Harvard Law Review, "original intent" back then did not refer to the Founding Fathers at all, as Meese has insisted. Instead, "intention" referred to "the parties to the constitutional compact— the states as political entities." Meese’s idea that "intention" meant the framers is, according to Powell, "historically mistaken. " 9

As the Civil War drew near, the states rights advocates who had spoken of "original intent" began to lace their rhetoric with references to the framers. This view was most succinctly expressed by Jefferson Davis in his Inaugural Address as president of the Confederacy. The Confederacy’s constitution, he asserted, is "the Constitution formed by our fathers," differing only "insofar as it is explanatory of their well-known intent." 10

The banner of the South’s lost cause was hoisted in the twentieth century by the Southern Agrarians, who, while not rationalizing slavery, cast a romantic haze over antebellum society. One of them, Richard Weaver, an English professor at the University of Chicago, argued that the South had not really been defeated, but had remained a land of superior values against the liberal modernity of the North. In 1948, his book Ideas Have Consequences was published, an outcry against "modern barbarity." The book is widely considered by conservatives to be one of the starting points of their movement, and its title has become a conservative cliché. Weaver’s thought did not touch on the legal realm, but he strongly influenced another intellectual founder of movement conservatism— Willmoore Kendall, the Yale political scientist who influenced, among other students, William F. Buckley, Jr.

Kendall taught that modern liberals were the "legitimate offspring" of Lincoln, where the problem really started. This "strong" president injected a "cancer" into the American system that threatened its "very survival." And this "cancer" was the clauses of the Fourteenth Amendment guaranteeing the right of "due process" and "equal protection" under the law. Kendall, however, was not an "original intention" advocate. Instead, he urged conservatives to "get busy and amend the Fourteenth Amendment," from which flowed many of the innovations of the Warren Court." 11

The law that was made after the North won the Civil War reflected a new political alignment. The attempt now to undo this law reflects a renewed opposition to the metropolitan values of the North as promoted by the federal government.

Movement conservatism is built upon the ruins of Lincoln Republicanism. Inside the GOP at the height of the civil rights controversy, the conservatives gained control of the 1964 convention by relying on a broad southern strategy encompassing the Sunbelt. This has since become the base of their general election strategy. But after the passage of the civil rights crisis, the proximate cause of the electoral shift in the South, the conservatives have seized upon other divisive social issues in the effort to effect a more sweeping and lasting realignment.

The condition of the conservative ascendancy is the fall of the Republicanism whose philosophical identity has been premised on the Civil War amendments the Republican founders sponsored. The ultimate expression of this stream of thought was the law laid down by Chief Justice Earl Warren, whom the conservatives consider the fount of much evil.

To remove the most stubborn impediment to the conservatives' political ambitions, they challenged the constitutional legitimacy ol modern jurisprudence. This was more than intra-party factional warfare. In order to achieve their aims, the conservatives must overthrow more than a partisan position. They must overthrow the larger legacy of Lincoln, a legacy which has long been part of the country’s bone and fiber.

Reagan, unlike Meese, had succeeded in cloaking conservatism with his geniality. And yet even he occasionally slipped. In his first Inaugural, he said: "The states created the federal government," an idea that can be traced to John C. Calhoun, a flat contradiction of Lincoln, who said: "The Union is older than any of the states and, in fact, it created them as states." In the movement conservatives’ siege of the judicial citadel, Meese unfurled an unadorned ideology, exposing it to an examination from which Reagan mostly protected it.

The Attorney General’s enterprise was made possible by a recently emerged conservative legal establishment located around Washington. Benchmark magazine, for instance, which deals with legal issues, is

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published by the Center for Judicial Studies, a think tank directed by James McClellan, a former aide to New Right Senator Jesse Helms of North Carolina. The Benchmark book review editor is Gary McDowell, a Justice Department public affairs aide who has castigated the Supreme Court for making the states adhere to the constitutional stipulations on religion, speech, and other rights. Senior editor Grover Rees oversaw judicial selection at the Justice Department, and was then appointed a federal judge. Another senior editor, William Kristol, denouncer of the "judicial activists," is the special assistant to Secretary of Education William Bennett. And contributor Daniel Popeo is the head of the Washington Legal Foundation, which files briefs for New Right causes.

Benchmark’s Supreme Court editor, Bruce Fein, the former general counsel to the Federal Communications Commission, is associated with a host of conservative think tanks including the American Enterprise Institute and the Heritage Foundation. He has been perhaps the most direct influence on Meese’s formulations. Fein’s speech on last year’s Supreme Court term, delivered at AEI, was well attended by notetaking Justice Department aides. Unsurprisingly, Meese’s ABA speech followed Fein’s speech concept by concept, often phrase by phrase.

While these theorists seek to deny the "judicial activists" interpretative latitude, their own legal doctrine also depends on an interpretation of American history. The concept of "original intention," however, implies there are eternal precepts immune to any modernization. For some inexplicable reason, the Constitution of 1787 stands outside history, but the Civil War amendments do not, a selective reverence for the past.

Apparently, what is older is better. In their analysis, the conservatives portray the founding fathers as superhuman seers, the only ones permitted to shape the present. But since the founders are not here, the conservatives must act as their proxies. It seems that the founders’ ability to peer into the future is matched by the conservatives’ ability to read the minds of men long dead.

But the conservatives’ pretension is most threatened by their own ideology, which is on a collision course with itself. In Meese’s effort to clarify his July ABA address, he delivered a speech in November 1985

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in which he attacked jurists who "have grounded’ their rulings in appeals to social theories." This "activist jurisprudence," he said, is "a chameleon jurisprudence, changing color and form in each era."

Meese believed that he was setting out the terms for undermining the liberal activists. Yet the "original intention" and "judicial restraint" schools of thought are in direct conflict with the other major conservative school of legal thinking, the law and economics activists whose provenance is the University of Chicago Law School.

The law and economics doctrine is less law than economics. Its founder was Aaron Director, Milton Friedman’s brother-in-law, a University of Chicago economist on the law school faculty who shares Friedman’s ideological predilection for unrestrained markets. To Director, the law is merely another way of demonstrating the compelling logic of his economics. "A lot of us who took his antitrust course or thc economics course underwent what can only be called a religious conversion. It changed our view of the entire world," said Robert Bork, a Director disciple who was appointed by Reagan to the U.S. Court of Appeals. 12

After founding this school of thought, Director recruited Ronald Coase to the University of Chicago as an economist. Coase argued that legal rules should take account of social costs, which could be minimized by reliance on the market. What became known as the Coase Theorem gave law and economics its rationale. "I hate 'justice.' The word is meaningless," elaborated Richard Posner, a University of Chicago law professor appointed by Reagan to the federal appeals court, who pushed the Coase Theorem into the center of legal debate. 13

Legal thinkers like Posner reduce the law not merely to economics but to a particular economic doctrine, which is presented as universal truth. The market, in their reasoning, has the correct answer for any legal problem; we need only to discern the intent of the invisible hand.

This Social Darwinist brand of jurisprudence is partly an act of restoration, an attempt to bring back a previously discredited notion. Oliver Wendell Holmes, long ago, assailed those who interpreted the Constitution in the light of "Mr. Herbert Spencer’s Social Statics." And Supreme Court Justice Benjamin Cardozo chided those who appealed

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to liberty as "the masquerade of privilege or inequality seeking to entrench itself behind the catchword of a principle." 14

Obviously, the law and economics school imports nonjuridical thinking into the law. It is constantly creating new categories by applying its doctrine to changing reality. In the past, other disciplines like sociology and psychiatry were brought into the law to help resolve specific problems such as segregation and insanity. By contrast, the law and economics school has consciously grafted its ideas onto jurisprudence, ideologically motivated by a desire to transform the law into a servant of the free market. The judges who follow this line of reasoning are the supreme "judicial activists."

Yet within the Counter-Establishment, these activists and the condemners of activism easily cohabit. One branch denies it is political at all; the other is fiercely political. One argues the ahistorical fiction that its judgments are rooted in a reading of an enduring "original intention"; the other militantly reads law according to a constantly spinning economic calculus.

What this ideology lacks in intellectual coherence it compensates for with political coherence provided by the conservative movement, which half camouflages the desire for judicial power with strafing of the judiciary. The conservatives attack what they wish to control. In the end, the intention is to entrench conservatism in the courts, insulated even from the electoral tides.

This has happened before, of course. When the Federalist Party, the party of commercial interests and big government, was defeated in the popular arena, its partisans sought to perpetuate their ideology by occupying the courts, the most aristocratic branch of government. Unlike the contemporary conservatives, the Federalists made no pretense of "populism."

More important, the foremost Federalist jurist, Chief Justice John Marshall, who laid down the fundamental tenets of the Supreme Court, addressed himself to the issues underlying the current debate in the 1819 case on congressional power, McCullough v. Maryland. The movement conservatives who want to invest themselves with the authority of the past will find cold comfort in this founder’s words, which ring with contemporary relevance: "We must never forget that it is a

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Constitution we are expounding . . . This provision is made in a Constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future times, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." 15

Thus Meese’s "jurisprudence of original intention" was refuted at the origin, making his premise disappear.

Unsurprisingly, Meese, in his November speech, argued that "to use McCulloch, as some have tried, as support for the idea that the Constitution is a protean, changeable thing is to stand history on its head."

Once again, Meese’s confused self-defense provided the occasion for another clash with history. For Chief Justice Charles Evans Hughes, in 1934, directly spoke to Meese’s claim: "If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation." 16

Reagan had already led us through the dark night to the dawn: morning again. But the first term had not completed the cycle. There must be a second coming. Reagan had such remarkable powers of vision that he could explain every step we took as progress on the path to the Restoration. Yet even if we cut the welfare budget, built the MX missile, funded the Nicaraguan contras, and turned America into one big Enterprise Zone, from sea to shining sea, we would still not have entered the sacred time. Since the "focus of evil in the modern world" does not come from within us, but from the outside, we must shield ourselves from all penetration by demonic power. We are called to commit a heavenly act. But no death is required for the resurrection; the American spirit becomes immortal when the threat of extinction is removed. Thus we must restore the world to where it was before the

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Soviets had nuclear weapons, when we were Fortress America. We must circle the planet with lasers and particle-beam weapons— the Star Wars defense.

The idea of Star Wars did not drop from the sky. It was a product of the hothouse debates among the small circle of nuclear theologians. Appropriately, the father of Star Wars was Edward Teller, father of the hydrogen bomb, an abrasive opponent of liberal policies since his falling-out with J. Robert Oppenheimer at Los Alamos. Another influential proponent of Star Wars was retired Lieutenant General Daniel 0. Graham, previously director of the Defense Intelligence Agency and a member of the B-Team, set up at the instigation of conservatives as the CIA shadow to produce an analysis that asserted a rising Soviet threat. Teller and Graham’s work was subsidized by a rump group of Reagan’s Kitchen Cabinet— Joseph Coors, Justin Dart, Karl Bendetsen (CEO of Champion Industries)— benefactors whose interest was so great that they personally participated in the planning of the study. The Heritage Foundation served as a home, where anonymous policy analysts were attached to the effort.

In the meantime, Gregory Fossedal, a Wall Street Journal editorial writer, served as the writer for Graham, and promoted the notion in Journal editorials and articles appearing elsewhere. For private guidance the young Fossedal, in his twenties, turned to Jude Wanniski, who had used the Journal’s columns to launch supply-side economics, the great precedent. Then Fossedal’s wife, Lisa, was placed in charge of a new Counter-Establishment group, the Marshall Foundation (funded by the Olin Foundation), which disbursed grants to Star Wars proponents who produced studies in its favor. Idea, money, think tank, media— the Star Wars project began as an ideally formed Counter-Establishment molecule.

In 1982, the group at Heritage issued a full-color glossy report entitled High Frontier. Its authors argued that Soviet power was so great that it "can no longer be counterbalanced." We are "undefended," except that we can destroy our enemy and they can destroy us. This condition— Mutual Assured Destruction— is an "immoral and militarily bankrupt doctrine" that must be replaced by "a strategy of

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Assured Survival." (The word mutual does not fit into this doctrine.) Space would serve the function once performed by the Atlantic and Pacific oceans as natural barriers to foreign attack. Star Wars is more than a defensive system; it is our manifest destiny: "We Americans have always been successful on the frontiers; we will be successful on the new High Frontier of space." 17

Star Wars was conceived as a defense that would resist any offense, impregnable forever. Using high technology we could make the great leap forward, but once our defense was perfected, technological change would cease. According to the logic of the Star Wars designers, what could be done for defense could not be done for offense. This was an assumption that defied the entire history of warfare, from the age of the bronze helmet to that of the bomb shelter. Above all, Star Wars demanded a leap of faith— the faith that human ingenuity could devise superior technique to reach the lost horizon.

Before the High Frontier book was published, Teller and Graham disagreed over the imminent practicality of the Star Wars device. Teller believed that the system needed new technology, not yet invented, to become a reality. Graham, however, contended that the system could be constructed immediately; and so he spun off, incorporating High Frontier as a separate group.

The idea then began a journey through the official bureaucracy. The Department of Defense commissioned a study that concluded that the notion wasn’t feasible. And the Congressional Office of Technology Assessment conducted research, then reported that Star Wars was "a defensive system of extremely limited capability." 18 By now, April 1983, President Reagan had been visited by Teller, Graham, and other advocates, and he had become a fervent convert. All skepticism within the administration and the movement became suspect, support for the idea an acid test of loyalty. The White House even attempted to suppress the congressional study.

On March 23, 1983, Reagan presented Star Wars as nothing less than "our ultimate goal." By doing something totally new, "rendering these nuclear weapons impotent and obsolete," we would "restore our military strength." With this stroke we could create "a truly lasting

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THE RISE OF THE COUNTER ESTABLISHMENT

stability," the final nuclear freeze. During the 1984 campaign, Star Wars was the only specific issue that Reagan offered, his new idea, the completion of the Restoration.

After the election, the Star Wars idea was defended by a host of well-intentioned administration spokesmen as the latest wrinkle in deterrence, the very doctrine of Mutual Assured Destruction it was supposed to replace. Defense Secretary Caspar Weinberger, who had initially opposed the notion, was now among its most avid promoters. He blurted: "If we can get a system which is effective and which we know can render their weapons impotent, we could be back in a situation we were in, for example, when we were the only nation with a nuclear weapon." 19 In other words, Star Wars was not about deterrence; it was a method of restoration.

The conservative intellectuals rallied round the flag. For the neoconservatives, the advocacy of Star Wars was a way to compensate for their overreaching during the campaign. In 1984 they had acted as though they could broker the Jewish vote for Reagan. Publications like Commentary were filled with articles attempting to excite Jewish fear of black anti-Semitism within the Democratic Party and allay fear of the evangelical right. Despite their best efforts, the neoconservatives could not shepherd the flock; overwhelmingly, Jewish voters cast ballots for Mondale. Now Star Wars offered a fresh opportunity for them to rehabilitate their standing within the movement by demonstrating their famous skills as publicists and debaters. They marked out a position to Reagan’s right, more Catholic than the Pope, supportive of Star Wars but critical of any arms-control negotiations. "We find," wrote Norman Podhoretz, "no rational justification for the faith in arms control." Star Wars, however, "really does hold out the rational hope of an eventual escape from the threat of nuclear war." 20 As the neoconservatives saw it, the issue pitted reason against faith. To be against Star Wars was to be irrational.

The neoconservatives begged the question: What was the underlying reasoning of those who fostered the Star Wars idea? Was this a notion prompted solely by an austere rationality— for example, mathematical calculations of the size of the Soviet arsenal? Or was there tangled somewhere in the logic perhaps a domestic ideological root?

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THE SECOND COMING

In 1984 the founders, funders, and promoters of Star Wars gathered at a forum sponsored by Citizens for America, a conservative movement group. Karl Bendetsen, a financial backer of High Frontier, explained that Mutual Assured Destruction, or deterrence, had been foisted on the country by liberals, "the same crowd that initiated the disarmament of the United States in, 1960 under the first Kennedy administration . . . and the scientists who joined them then and are still on their side."

The concept of "their side" was further elaborated by Daniel Graham, who identified it as the "Liberal Establishment." The conservative movement, he urged, must "get at some of the elites . . . get at the political establishment." The balance of nuclear terror, he continued, was the most insidious and cunning aspect of liberal ideology. "These people really benefit by having the threat of enormous destruction, of catastrophic destruction, of apocalyptic destruction hanging over the heads of Americans. And they don’t want us out from under that threat. And the reason they don’t want us out from under that threat is because that terrible threat allows them to get Americans to do things they would not otherwise do." According to his logic, Mutual Assured Destruction is the ultimate weapon in the liberal arsenal, deployed to enforce domestic political control. Because of the threat the liberals wield, they are able to manipulate us to support their agenda. Once Star Wars is in place, however, the liberals will lose their shield. Then the window of vulnerability for conservatives— and America— will be closed.

How dangerous are these liberals? Robert Jastrow, a scientist who has become a leading spokesman in favor of Star Wars, noted that liberal scientists who fail to accept Reagan’s "wisdom" are in league with "journalist fellow travelers." Their views, moreover, are "accepted unquestioningly by The New York Times and by sincere Congressmen and their staffers on the Hill. This group," he warned, "is putting an enormous amount of energy into an effort that can only be described as being in the interests of the Soviet Union . . ." 21

Stars Wars, according to these conservatives, will accomplish a Promethean feat greater than the ultimate defense of America front Soviet missiles. It will steal the fire of the Liberal Establishment. And by conquering one idea (Mutual Assured Destruction) with another

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THE RISE OF THE COUNTER ESTABLISHMENT

(Assured Survival) the conservatives will rise and the liberals will fall. Star Wars is shadow liberalism in orbit.

"There is," said Dwight Eisenhower, "a recurring temptation to feel that some spectacular and costly action could become the miraculous solution to all current difficulties," an action like "a huge increase in the new elements of our defense" or a dramatic expansion in basic and applied research." Yet "in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientifictechnological elite." 22

According to almost unanimous scientific opinion, Star Wars would not work as advertised— a perfectly sealed defense mechanism. But the intrinsic merit of the idea matters less than its existence, which heralds a momentous political event— the fusion of "a scientific-technological elite" with a political elite, a Counter-Establishment technocracy.

In the end, the conservative networks that produce the various ideas are almost as important as the ideas themselves. Once in place, the Counter-Establishment can constantly churn out agendas: process determines policy. New doctrines arrive because the CounterEstablishment remains.

310

1. Charles Murray, Losing Ground: American Social Policy, 1950-1980, Basic Books, 1984, page 42. text@note1

2. Chuck Lane, "The Manhattan Project," The New Republic, March 25, 1985. text@note2

3. See Jodie T. Allen, "That Charles Murray Book: How Good Is It?" Washington Post, September 19, 1984; Robert Kuttner, "Declaring War on the War on Poverty," Washington Post Book World, November 25, 1984; Robert Greenstein, "Losing Faith in ‘Losing Ground,’ " The New Republic, March 25, 1985; Daniel Patrick Moynihan, Family and Nation, The Godkin Lectures, Harvard University, April 1985. text@note3

4. Charles Murray, "The Great Society: An Exchange," The New Republic, April 8, 1985. text@note4

5. Cited by Robert Greenstein, op. cit. text@note5

6. George Gilder, "The Murray Imbroglio," The American Spectator, March 1985. text@note6

7. Martin Anderson, Welfare: The Political Economy of Welfare Reform in the United States, Hoover Institution Press, 1978, page 39. text@note7

8. Murray, Losing Ground, op. cit., page 9. text@note8

9. H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review, March 1985, volume 98, number 5. text@note9

10. Ibid., page 947. text@note10

11. Cited by George H. Nash, The Conservative Intellectual Movement in America, Basic Books, 1976, pages 243-244. text@note11

12. Lincoln Caplan, "Supply-Side Judging," California Lawyer, May 1985. text@note12

13. Lincoln Caplan, "Is the Supreme Court Ready for This Kind of Free- Market Justice?" Washington Post, September 30, 1984, page Dl. text@note13

14. Cited by Harold J. Laski, The American Democracy, 1948, page 31. text@note14

15. McCullough v. Maryland, 4 Wheaton 316 (819). text@note15

16. Home Building and Loan Association v. Blaisdell, 290 U.S. 38 (1934). text@note16

17. Daniel 0. Graham, High Frontier: A New National Strategy, Heritage Foundation, 1982, pages 1-16. text@note17

18. Cited by George W. Ball, "The War for Star Wars," New York Review of Books, April 11, 1985. text@note18

19. Ibid. text@note19

20. Norman Podhoretz, The New York Times, January 24, 1985, page 25. text@note20

21. "A New Shield of the Republic," Citizens for America pamphlet, 1984. text@note21

22. Cited by Ball, op. cit. text@note22


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