Reagan, Ronald (1911–) (Update)

views updated

REAGAN, RONALD (1911–) (Update)

No President since franklin d. roosevelt devoted as much of his administration's attention to the courts and the Constitution as did Ronald Reagan. After a career as an actor and spokesman for General Electric, Reagan was catapulted into politics by a famous televised speech on behalf of Barry Goldwater's presidential campaign. Twice elected governor of California, Reagan was hailed as the conservative standard-bearer in his unsuccessful race for the Republican presidential nomination in 1976. He came to office in 1980 pledging to reinvigorate the idea of limited government—to restore what he saw as the constitutional foundations of American politics. In part, this restoration would involve restricting the federal government's encroachments on individual freedom and on the prerogatives of state governments. But more important, it would require that the doctrines stimulating the federal government's inordinate growth be publicly discredited and supplanted.

Reagan won the 1980 presidential election by a large margin and set to work to lower federal tax rates and shore up America's defenses. These tasks absorbed most of his and his administration's attention even after his still more massive electoral victory in 1984; but Reagan wished always to make the "Reagan Revolution" something broader and deeper—what he called in his 1985 State of the Union Address "a Second American Revolution." The changes in economic and defense policy won in the great legislative battles of his first term had therefore to be parlayed into a general rethinking of the purposes of American politics and, especially, of the functions served by the courts.

Large changes in American electoral politics, particularly in the wake of so-called critical or realigning elections, do eventually register on the judiciary (as in 1937, with the "switch in time" that "saves nine") and sometimes on the Constitution itself (for example, the Civil War amendments). Indeed, in Reagan's view, the liberalism that he attacked had always put a high premium on control of the judiciary, from FDR's court-packing plan to the activism of Chief Justice earl warren to President jimmy carter's efforts to apply strict affirmative action standards to judicial appointments. But Reagan faced the novel circumstance of trying to undo a series of divisive liberal measures that the Supreme Court itself had directed—the legalization of abortion, the expulsion of prayer from the public schools, the promulgation of the exclusionary rule, and so forth.

These issues were particularly important to the social conservatives who had joined with traditional Republicans and anticommunists in the 1960s and 1970s to form the coalition that would eventually sweep Reagan into office. Although Reagan campaigned both in 1980 and 1984 for the overruling of such Supreme Court decisions, he himself did little to dislodge them, except to call for constitutional amendments to protect the life of the unborn and to allow voluntary school prayer in public classrooms. To confront the Court more directly would have risked alienating the more libertarian members of his coalition, which was united more by its common enemies than by common principles. Instead, he concentrated his administration's energies on the selection of judges pledged to exercise "judicial restraint" and, therefore, more likely over time to modify or overturn their predecessors' activist decisions.

It is probably in this way that the Reagan administration will have its great effect on constitutional interpretation. In the course of his presidency, Reagan appointed more than 400 federal judges, nearly half the federal bench, as well as three Supreme Court Justices; and he elevated william h. rehnquist to chief justice of the Supreme Court in 1986. All these appointments were vetted and approved by an elaborate machinery centered in the Justice Department's Office of Legal Policy and overseen by a newly created White House Judicial Selection Committee. Critics objected to the screening procedure, claiming that it politicized the judicial selection process by subjecting candidates to a "litmus test" on such issues as abortion and criminal procedure. But the Reagan administration denied the charge, arguing that the reviews focused not on specific issues, but on the candidates' general approach to legal and constitutional interpretation, which the President was entitled to consider, and that in any event the liberal critics were applying a double standard.

The issue was raised desultorily in some of Reagan's nominations to the Supreme Court—sandra day o'connor in 1981, the first woman ever nominated (pursuant to a 1980 campaign promise by Reagan); antonin scalia in 1986, who replaced Rehnquist when the latter was elevated to Chief Justice; and anthony m. kennedy in 1988—but it was raised acutely in the confirmation hearings of Rehnquist and above all of Robert H. Bork. The latter was denied confirmation by the Senate after a long, bitter, and very public struggle over the meaning of "judicial restraint" and of what Attorney General Edwin Meese had called "a jurisprudence of original intention." After Bork's defeat, Reagan nominated Douglas H. Ginsburg, who was forced to withdraw on account of disclosures about his personal life and controversy over his conduct as Justice Department attorney. Shortly thereafter, Reagan nominated Kennedy, who finally assumed the seat vacated by Justice lewis f. powell half a year earlier.

The significant question concerned the meaning of "judicial restraint." Did it mean, as its liberal critics claimed, that judges would respect only those laws and precedents approved by conservatives and restrain all the others? Or did it entail genuine respect for the language of the Constitution and a principled deference to the rights of legislative majorities, as its defenders maintained? The controversy over "restraint" therefore pointed to the larger question of the meaning of the Constitution itself. Did the Constitution embody an original intent that judges must regard as authoritative? Liberals such as Justice william j. brennan argued, somewhat contradictorily, that judges could not know what the Framers' intentions 200 years ago were; that even if they could, times have changed and interpretation of the Constitution could not be bound by the views of "a world that is dead and gone"; and that what the Framers actually intended was to leave the Constitution open-ended and alive, so that it might be adjusted to changing times and values. To this, conservatives such as Bork and Rehnquist replied that the Framers' intentions were either clearly spelled out in the Constitution or not, and if not, then it was up to Congress or the states to make law as they saw fit.

But this answer begged the question of whether in ascertaining the Framers' intentions a distinction did not have to be made between the spirit and the letter of the Constitution; or, to put it differently, whether precisely in order to understand the Constitution as the Framers understood it, one did not have to distinguish between its principles and the application (or compromise) of those principles, for example, in the so-called three-fifths compromise. The alternative to seeking such principles as a ground of the Constitution's authority was to accept the letter of the law as itself the highest authority, or more exactly, to accept as just and lawful whatever the sovereign majority decreed in the Constitution or in statute law, no matter how irrational or unjust. That is to say, the alternative was a form of legal positivism or formalism. That Bork's position came close to this became painfully clear in the debate over the right of privacy during his confirmation hearings. In short, although his jurisprudence emphatically rejected judicial tyranny, it did not seem to afford a principled defense against majority tyranny. To that extent, it fell short of the natural law principles that justified limited government and that had informed the "original intention" of the Constitution's Framers.

As President, Reagan relied on his Justice Department and solicitor general to encourage the narrowing of the liberal precedents left over from the Warren and Burger courts. The administration succeeded in persuading the Supreme Court to enlarge existing exceptions to the exclusionary rule, to create new ones, and to narrow the acceptable occasions for court-ordered affirmative-action remedies. But Reagan refused to issue an executive order forbidding set-asides and other forms of reverse discrimination in executive-branch contracts and was saddled with an amended Voting Rights Act (1982) that went far toward establishing proportional representation (i.e., quotas) for selected minorities as the paramount goal of legislative redistricting. The Reagan administration's reluctance to face a public debate on civil rights and affirmative action left it vulnerable to attack by the advocates of racial and ethnic entitlements who insisted that anyone who was against the "empowerment" of favored minorities through racial quotas (although the dread word was seldom used) was against civil rights.

Although his administration did much to remind the American people that a strong, purposeful President could initiate profound political change, Reagan was often frustrated by Congress. In a remarkable victory that, along with Reagan's landslide electoral win, seemed to promise a fundamental shift in American politics, the Republicans gained control of the senate in 1980—only to lose it six years later; they never came close to taking control of the house of representatives. The result was divided government and a long running battle over foreign and domestic policy in which the administration had the upper hand only in its first two years. From these struggles arose at least two interesting lines of constitutional controversy.

The first concerned foreign affairs, specifically, the scope of the President's discretion under statute law and the Constitution to order covert activities abroad. Stung by congressional opposition to its initial program of "covert" aid to the forces seeking to overthrow the Sandinista regime in Nicaragua, the administration turned to a more overt strategy of aid, appealing directly to the Congress and the people for support. Although sometimes endorsing Reagan's commitment to arm resistance fighters in communist-controlled countries (e.g., in Afghanistan), the Congress vacillated on aid to the Contras fighting in Nicaragua. During Reagan's presidency, at least two versions of the boland amendment were passed, along with two or three later modifications of the amendment, each restricting Contra aid in different and conflicting ways.

Against the background of Reagan's desire to support the Nicaraguan resistance, and his need to exploit the ambiguities of the Boland Amendment in order to do so, arose the iran-contra affair—a tangled enterprise run out of the National Security Council (NSC) and aimed at a deal involving the release of hostages held by pro-Iranian terrorists, arms sales to Iran, and the diversion of profits to the Contras in Nicaragua. Fearing another watergate scandal, the administration discharged the accused parties, launched its own inside and outside investigations, called for an independent counsel, and cooperated with two congressional committees appointed to investigate the affair. The larger legal questions turned on whether or not the NSC was covered by the Boland Amendment's ban on aiding the Contras; the constitutional question as to whether or not the President's authority as commander-in-chief (or his oath of office) enabled him to act, for the sake of salus populi, on the margins of or even against a congressional statute. In the event, the constitutional issue was quickly eclipsed by the debate over the statutory question and by the dramatic testimony and trial of Oliver North, a hitherto obscure NSC staffer.

In other foreign-policy matters, Reagan enjoyed a wide latitude. He committed U.S. forces to Lebanon, to the raid on Libya, to the liberation of Grenada, and to protection of Kuwaiti oil tankers in the Persian Gulf without invoking the War Powers Resolution and indeed with minimal congressional consultation.

The second interesting line of skirmishes between the Reagan administration and Congress concerned the executive's independence on the domestic front. Here, many administration officials were keen to reign in the authority of the special prosecutors created by the Ethics in Government Act for the specific purpose of investigating members of the executive branch, and to curtail the proliferating means of congressional influence over the executive agencies. On the former topic, the Reagan administration argued that the law establishing special prosecutors violated the separation of powers by impinging on the executive's right to initiate, conduct, and terminate criminal prosecutions and led, in many cases, to the criminalizing of policy differences. But the Supreme Court upheld the law by a 7–1 vote in Morrison v. Olson (1988).

On the latter question—the extension of congressional power over the executive and independent agencies—Reagan faced even greater opposition. Although the administration convinced the Supreme Court of the unconstitutionality of the legislative veto in immigration and naturalization service v. chadha (1983), Congress continued to pass (and Reagan continued to sign) laws containing such provisions, as well as the even more dubious "committee veto," whereby executive branch decisions may be disallowed by the vote of a single congressional committee.

But the legislative veto was only one of a multitude of ways by which the Congress and its swarm of subcommittees harassed the Reagan administration. In particular, Reagan's appointees complained of the "micromanagement" of the executive agencies by subcommittee chairs and individual members of Congress cajoling and threatening on behalf of their constituents and other friendly interest groups. By this tactic, members of Congress could pass broad, vaguely worded laws serving popular causes and then take credit for saving their constituents from the onerous consequences of the very same laws. The use of omnibus continuing resolutions in place of budget bills was yet another tactic to restrict the executive branch's freedom to veto specific budget bills and its right to decide how to execute the programs funded in the bills.

Reagan himself did not take a leading role in protesting what he regarded as these legislative encroachments on the executive, leaving his subordinates to do most of the disputing. He did vehemently object to being presented with the choice of either signing or vetoing at one stroke the entire budget of the federal government, but nevertheless signed the mammoth Continuing Resolution and Fiscal Year 1988 Budget Reconciliation Act. Rather than precipitate a fiscal, political, and constitutional crisis, he chose to reemphasize his call for two constitutional amendments—one creating a line-item veto for the President and the other mandating a balanced budget—to strengthen the hand of future Presidents.

For a conservative President, Reagan appealed for an unusual number of constitutional amendments. In part, this was a backhanded admission of his reluctance to engage in direct costly political combat over the budget, school prayer, abortion, and other controversial subjects. This reluctance was not so much temperamental as it was a reflection of a strategic political decision he had made before entering office in 1980, a decision to try to control the national political agenda by concentrating on two critical issues: reducing taxes and strengthening America's defenses. Of course, Reagan's decision was also shaped by the internal weaknesses of his own coalition, which he was never sufficiently able to overcome to bring about a thoroughgoing political realignment like the new deal.

Perhaps his greatest constitutional achievement did not have to do with the institutions of government at all. Reagan strove mightily to restore Americans' confidence in themselves as a fundamental force for good in the world, and in his speeches he seldom failed to remind his fellow citizens of a connection with the heroes and statesmen of the American past. In this way, he helped revive their faith in the goodness of the Constitution itself, a faith that had been sorely tried in the dark decades of the 1960s and 1970s.

Charles R. Kesler
(1992)