This is going to get thick, just short of 1400 words. Hang in there.
Yesterday, I posted about a fascinating survey of Americans conducted by experts on the right and left hired by Esquire and NBC News. I urged readers to take the survey and tell me what, if any, relevance the results have to the federal judiciary. It is that question dealing with the relevance of the survey results to the federal judiciary that I address here. Realizing that many may disagree, I believe the survey methodology was sound and the results dependable, that is to say, they would be reproduced if done over and over again–for the moment, assume I am right.
Before we can ascertain the relevance of the survey results to the federal judiciary, we must understand what the survey found. A good explanation appears here and here. It is from those discussions that I summarize the points especially relevant to the federal judiciary:
*There is a large group of American voters—a majority (51% percent)—who make up a “New American Center” that is passionate, persuadable, and very real. When we talk about the Center, we are not talking about some shapeless, shifting mass of voters who just can’t make up their minds about where they stand. They are a discrete group although they are not homogeneous .
*Nearly half of those in the Center identify themselves as liberals (20 percent) or conservatives (25 percent). But moderates make up 55 percent of the group. The Center’s views do not correspond to traditional definitions of liberal and conservative despite how Center members might identify themselves. Religion is not a major part of the Center’s life, and Center members firmly believe that religion has no place in the public sphere. Nearly two-thirds of the Center often agree with some ideas that Democrats have and some ideas that Republicans have.
*The Center has a socially progressive streak, supporting gay marriage (64 percent), the right to an abortion for any reason within the first trimester (63 percent), and legalized marijuana (52 percent). Women, workers and the marginal would also benefit if the Center had its way, supporting paid sick leave (62 percent); paid maternity leave (70 percent); tax-subsidized childcare to help women return to work (57 percent); and a federal minimum wage hike to no less than $10 per hour (67 percent).
*But the Center leans rightward on the environment, capital punishment, and diversity programs. Majorities support offshore drilling (81 percent) and the death penalty (90 percent), and the end of affirmative action in hiring and education (57 percent). Most people in the Center believe respect for minority rights has gone overboard, in general, harming the majority in the process (63 percent). And just one in four support immigration reforms that would provide a path to citizenship for those who came here illegally.
*The Center is mostly white (78 percent) but so is most of the American voting public (72 percent) — and the Center is changing. Already it contains a fifth of African-American voters, one in two Latino voters, and half the women in America.
The publishers of the survey describe this group as the “New American Center.” But, in this respect, I think they are wrong. This Center is not new. It is old, very old. Indeed, as I read the results, I kept hearing Alexis de Tocqueville (1805-1859) in my mind.
Let’s remember who he was:
Alexis de Tocqeville (1805-1859) was one of the French intellectuals who deeply convinced that a new type of human being was emerging in the New World. He looked at America as a fascinating social experiment of vast proportions and with portentous implications for the future of the world. He spent a year in the United States to study the penal system of this young republic. After his return, from 1835 until 1840, he wrote and published the book that made him famous, Democracy in America. His descriptions and analyses of the United States are such that political scientists and historians of culture find them informative and useful to this day; they have given generations of readers an idea of what it might mean to be an American, and what the role of America might be in the modern world.
PHILOSOPHICAL FORUM, Department of Philosophy, Frostburg State University, De Tocqueville: Individualism in America.
What did Alexis find when he too surveyed Americans? As relevant here, he found two things. First, he found that Americans were practical and did not rely upon political or philosophical theories. He wrote:
I think that in no other country in the civilized world is less attention paid to philosophy than in the United States. The Americans have no philosophical school of their own; and they care but little for all the schools into which Europe is divided, the very names of which are scarcely known to them.
And, Americans were individualistic. That is:
As to the influence which the intelligence of one man has on that of another, it must necessarily be very limited in a country where the citizens, placed on a footing of a general similitude, are all closely seen by each other; and where, as no signs of incontestable greatness or superiority are perceived in any one of them, they are constantly brought back to their own reason as the most obvious and proximate source of truth.
How then did the Americans as Alexis saw them relate to the law and the judiciary? Because they were practical–they valued solutions–and individualistic–they valued self-reliance–Americans looked upon the law and the judiciary as the accepted tool for resolution of disputes (both as between themselves as well as with the government) and as a counterweight to the potential tyranny of the majority. Famously, he wrote:
Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings . . . The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter XVI, Causes Which Mitigate the Tyranny of the Majority in the United States.
And he recognized that Americans had willingly entrusted their courts with “immense” power:
Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone.
Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter VI, The Judicial Power in the United States.
Just as De Tocqueville found in the 1830s, America in 2013 has a Center. That Center is passionate but practical. It is not philosophical or partisan. It is individualistic. Most important for these purposes, the modern Center, like the Center Alexis found, is likely to be perfectly comfortable with a legal profession and a judiciary that play an integral and moderating influence in the life of our country. For those like me who venerate the legal profession and the judiciary, the belief that history has repeated itself is a great comfort.*
*When I took the survey, I scored among the 10 percent of those who were most liberal. (A big surprise to me.) One does not need to agree with the views of the new Center to appreciate that it seems very much like the old Center. This hopefully portends both a continuing stability and a reliance upon lawyers and judges as central components of the ongoing American experience.