A brooding omnipresence: totalitarianism in postwar constitutional thought.

• Author: Primus, Richard A.

In Dennis v. United States,(1) Justice Robert Jackson noted that lawmaking in his generation involved never-ending quests for a legal formula that would protect America against a communist revolution.(2) Jackson was writing primarily about the Smith Act,(3) but his remark had much broader application. In the years after World War II, the Supreme Court continually reformulated constitutional doctrine in ways designed to prevent a totalitarian regime, communist or otherwise, from arising in the United States. Sometimes, as in Dennis, antitotalitarianism, appeared on the face of judicial doctrine. In a more subtle way, the desire to articulate principles that distinguished America from the Soviet Union and Nazi Germany contributed to a long line of liberal Supreme Court decisions from the Second World War through the Warren era. Those decisions revolutionized the law of free expression,(5) equal protection,(6) police procedures,(7) and personal privacy.(8) But to credit antitotalitarianism with helping to remake constitutional case law is still to underestimate its influence. The problem of totalitarianism gave birth to major themes in modern academic constitutional theory. Indeed, constitutional thought still operates within the framework defined by opposition to Nazism and communism. Antitotalitarianisin lies just below the surface of the leading modern theories of constitutional law, coloring the work of scholars like John Hart Ely and Bruce Ackerman. The quest for an antitotalitarian formula marks not just judicial doctrine but academic constitutional thought as well. Theorists know that the ability to prevent the rise of a Nazi- or Soviet-style regime has become the implicit final test of any constitutional theory, and they struggle, just as Jackson's Court struggled, to find a formula adequate to the task. Understanding the aims and the limits of modern constitutional thought, academic as well as judicial, thus requires understanding the influence of antitotalitarianism.

Existing scholarship has tended to underestimate the role of antitotalitarianism in postwar judicial doctrine and to ignore the influence of antitotalitarianism on contemporary constitutional theorists. To be sure, some scholars have noted the influence of antitotalitarianism on specific constitutional doctrines such as equal protection, and the right of privacy.(10) These accounts, however, are concerned with particular doctrines rather than with the development of constitutional thinking as a whole. Scholars who have tried to account for postwar constitutional development more broadly have discussed a range of explanatory factors other than antitotalitarianism: the New Deal,(11) the Cold War,(12) the Great Society,(13) the civil rights movement,(14) the women's movement,(15) public opposition to the war in Vietnam,(16) and the adoption by the Supreme Court of a theory of pure procedural democracy.(17) Those forces certainly did influence constitutional doctrine between World War II and the 1960s, but the influence of antitotalitarianism was at least as important.

The influence of antitotalitarianism on academic constitutional theory has been even more neglected. The leading work on American intellectual reaction to totalitarianism is Edward Purcell's The Crisis of Democratic Theory,(18) in which Purcell argued that many American legal scholars who had once been relativists embraced foundational imoral theories in the 1930s and 1940s because the confrontation with Nazism made relativism less attractive.(19) Purcell's account ended with the 1960s but the influence of totalitarianism did not. As this Note shows, the problem of totalitarianism significantly influenced two of the most important contributions to recent constitutional theory, John Hart Ely's Democracy and Distrust(20) and Bruce Ackerman's We the People: Foundations.(21) Each of these books exhibits internal tensions which, I suggest, are best viewed in the context of the antitotalitarian influence.

Democracy and Distrust argues for a purely procedural approach to judicial review. Judges, Ely argues, should not make substantive choices on issues of values or policy. Instead, they should interpret the Constitution so as to regulate the processes of representative democracy, making sure that the channels of political change are open and functioning properly.(22) Most of Democracy and Distrust is dedicated to this argument. Toward the end of the book, however, Ely argues that the Constitution must grant special protections to minority groups.(23) Several commentators have noted that this prescription does violence to the book's major claim that the Constitution should be interpreted in ways that avoid making judgments on substantive policy issues.(24) What those commentators have left unasked, however, is why Ely undercuts his general theory in this way. I suggest that what forces Ely to qualify his theory is the problem of totalitarianism. Without the special provision for minority rights, Ely's procedural constitutionalism could not block a Nazi-style regime from arising in America. Because antitotalitarianism is implicitly required of any constitutional theory, Ely adds an antitotalitarian chapter to his book, even though that chapter is in great tension with the heart of his proceduralist theory.

We the People also operates within an antitotalitarian framework. In that book, Ackerman offers a "dualist" theory of popular sovereignty, arguing that the People have broad authority to amend the Constitution both within and without the formal amending procedures of Article V.(25) The dualist theory is presented not as a prescriptive argument for how American constitutionalism should operate but as an interpretive description of how American constitutionalism has actually functioned. After elaborating that descriptive interpretation, Ackerman offers a prescriptive constitutional vision that explicitly rejects the dualist system that We the People describes. Having argued that the people have broad, inherent power to amend the Constitution, he proposes that certain parts of the Constitution be made unamendable by any means, formal or otherwise.(26) In parallel to the question of why Ely undercuts the descriptive theory of Democracy and Distrust, I ask why Ackerman disavows the descriptive theory that he offers in We the People. Again, one answer lies in the unwritten rule that a constitutional theory must address the problem of totalitarianism. Ackerman's dualist constitutional system might not prevent the rise of a totalitarian regime, but his prescriptive foundationalism would. Accordingly, Ackerman rejects the dualist theory that is We the People's major innovation. That Ely and Ackerman are willing to go to such lengths to ensure that their visions of constitutional law preclude the rise of totalitarian regimes suggests the extent to which antitotalitarianism continues to influence academic constitutional theory.

The body of this Note has three parts. Part I describes the impact of totalitarianism on the intellectual climate of America at midcentury, when academics in many disciplines, including law, struggled with the implications of Nazism and Soviet Communism for their ethical and epistemological theories. Part II analyzes antitotalitarianism in the Supreme Court from World War II through the 1960s, showing how the influence of anti-Nazism and anti-Sovietism contributed to landmark decisions in many fields of constitutional law. Part III explores the influence of antitotalitarianism on modern constitutional scholarship, arguing that leading theorists like Ackerman and Ely have been substantially influenced by the totalitarian problem. This Part suggests that the major tensions in We the People and Democracy and Distrust, two of the most important recent works of constitutional theory, are traceable to the influence of antitotalitarianism.

1. Two in the Intellectual Response to Totalitarianism

   The origins of antitotalitarianism lie in the decades before World War ll, when the rise of Nazism and a growing fear of the Soviet Union precipitated a major crisis for English-speaking intellectuals.(27) Both regimes seemed highly pernicious, and many Americans struggled to articulate a principled opposition to Nazi and Soviet creeds. This Part discusses two separate and sometimes contradictory themes in the intellectual response to totalitarianism. One theme stressed the evil of relativism and the need for objective, universal truths. If no truth were absolute, this argument went, then no firm foundation existed from which to condemn and oppose Nazi or Soviet policies. Another theme stressed the evil of dogmatic ideologies. According to that argument, the essence of totalitarianism was unwavering adherence to alleged truths about science, politics, or morality. Antitotalitarianism entailed the willlingness to doubt and revise one's own beliefs. The first mode of response urged foundationalism; the second counseled skepticism. In the field of law, the first theme was the more powerful. It helped chasten legal realism and positivism, revive natural law theory, and invent the doctrine of universal human rights. Its influence underlay landmarks of legal development like the Nuremberg trials, the Hart-Fuller debate,(28) and a long line of Supreme Court decisions on civil liberties. The second theme, however, was also an important presence, coloring the work of leading constitutional critics such as Alexander Bickel. Together, these two ways of opposing totalitarianism redefined the project of legal philosophy in the generation after World War ll.

   1. Dominant Theme: The Return of Normative Foundationalism

      1. The Quest for Objectivity

         As Purcell has shown, most American intellectuals had by the early 1930s rejected the idea that a normative theory could be logically conclusive.(29) The problem of totalitarianism, however, forced many to think again. Leading academics began to argue...